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ANARCHY, 
STATE, AND 
UTOPIA 


ROBERT NOZICK 



BLACKWELL 

Oxford UK & Cambridge USA 







Material quoted from Lawrence Krader, Formation of the State, ©1968, pp. 21-22, 
reprinted by permission ofPrentice-Hall Inc., Englewood Cliffs, New Jersey. 

Excerpts from A Theory of Justice by John Rawls are reprinted by permission of the 
publishers, Cambridge, Mass: The Belknap Press of Harvard University Press and 
Oxford: The Clarendon Press, and are copyright © 1971 
by the President and Fellows of Harvard College. 


Copyright © 1974 by Basic Books, Inc. 


Reprinted 1980, 1984, 1986, 1988, 1990, 1991, 1992, 1993, 
1995, 1996, 1997, 1998, 1999 


Blackwell Publishers Ltd 
108 Cowley Road, Oxford, 0X4 1JF, UK 


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review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, 
in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, 
without the prior permission of the publishers. 


ISBN 0-631-19780-X 


Printed in Great Britain by T J International Ltd, Padstow, Cornwall 


This book is printed on acid-free paper 



CONTENTS 


Preface 

Acknowledgments 


PART I 

St ate-of -Nature Theory, or How to Back 
into a State without Really Trying 

1. Why State-of-Nature Theory? 

POLITICAL PHILOSOPHY 4 
EXPLANATORY POLITICAL THEORY 6 

2. The State of Nature 

PROTECTIVE ASSOCIATIONS 12 

THE DOMINANT PROTECTIVE ASSOCIATION I 5 

INVISIBLE-HAND EXPLANATIONS 1 8 
IS THE DOMINANT PROTECTIVE ASSOCIATION 
A STATE? 22 

3. Moral Constraints and the State 

THE MINIMAL STATE AND THE ULTRAMINIMAL 
STATE 26 

MORAL CONSTRAINTS AND MORAL GOALS 28 
WHY SIDE CONSTRAINTS? 30 
LIBERTARIAN CONSTRAINTS 33 

CONSTRAINTS AND ANIMALS 35 

THE EXPERIENCE MACHINE 42 

UNDERDETERMINATION OF MORAL 
THEORY 45 

WHAT ARE CONSTRAINTS BASED UPON? 48 
THE INDIVIDUALIST ANARCHIST 5 I 



VI 


Contents 


4. Prohibition, Compensation, and Risk 54 

INDEPENDENTS AND THE DOMINANT PROTECTIVE 
AGENCY 54 

PROHIBITION AND COMPENSATION 57 

WHY EVER PROHIBIT? 58 
RETRIBUTIVE AND DETERRENCE THEORIES OF 
PUNISHMENT 59 

DIVIDING THE BENEFITS OF EXCHANGE 63 
FEAR AND PROHIBITION 65 

WHY NOT ALWAYS PROHIBIT? 7 1 
RISK 73 

THE PRINCIPLE OF COMPENSATION 78 

PRODUCTIVE EXCHANGE 84 

5. The State 88 

PROHIBITING PRIVATE ENFORCEMENT OF 
JUSTICE 88 

“THE PRINCIPLE OF FAIRNESS” 90 
PROCEDURAL RIGHTS 96 

HOW MAY THE DOMINANT AGENCY ACT? IOI 
THE DE FACTO MONOPOLY 108 

PROTECTING OTHERS 1 10 

THE STATE 1 1 3 

THE INVISIBLE-HAND EXPLANATION OF THE 
STATE 1 1 8 

6. Further Considerations on the Argument 

for the State 120 

STOPPING THE PROCESS? 120 
PREEMPTIVE ATTACK 126 

BEHAVIOR IN THE PROCESS 13O 

LEGITIMACY 1 33 

THE RIGHT OF ALL TO PUNISH I 37 
PREVENTIVE RESTRAINT 142 


PART II 

Beyond the Minimal State? 

7. Distributive Justice 149 

SECTION I: 150 

THE ENTITLEMENT THEORY 150 

HISTORICAL PRINCIPLES AND END-RESULT 
PRINCIPLES 153 
PATTERNING 1 55 



Contents 


Vll 


HOW LIBERTY UPSETS PATTERNS 160 

sen’s ARGUMENT 164 

REDISTRIBUTION AND PROPERTY RIGHTS I 67 
LOCKE'S THEORY OF ACQUISITION I 74 
THE PROVISO 178 

SECTION II: 183 

RAWLS’ THEORY 183 
SOCIAL COOPERATION 183 

TERMS OF COOPERATION AND THE DIFFERENCE 
PRINCIPLE 189 

THE ORIGINAL POSITION AND END-RESULT 
PRINCIPLES 198 
MACRO AND MICRO 204 

NATURAL ASSETS AND ARBITRARINESS 2 I 3 
THE POSITIVE ARGUMENT 216 

THE NEGATIVE ARGUMENT 224 
COLLECTIVE ASSETS 228 

8. Equality, Envy, Exploitation, Etc. 232 

EQUALITY 232 

EQUALITY OF OPPORTUNITY 235 
SELF-ESTEEM AND ENVY 239 

MEANINGFUL WORK 246 

WORKERS' CONTROL 250 

MARXIAN EXPLOITATION 253 

VOLUNTARY EXCHANGE 262 
PHILANTHROPY 265 

HAVING A SAY OVER WHAT AFFECTS YOU 268 

THE NONNEUTRAL STATE 27 I 

HOW REDISTRIBUTION OPERATES 274 

9. Demoktesis 276 

CONSISTENCY AND PARALLEL EXAMPLES 277 
THE MORE-THAN-MINIMAL STATE DERIVED 280 
HYPOTHETICAL HISTORIES 292 


PART III 

Utopia 

10. A Framework for Utopia 297 

THE MODEL 297 

THE MODEL PROJECTED ONTO OUR WORLD 307 
THE FRAMEWORK 309 
DESIGN DEVICES AND FILTER DEVICES 


312 



Contents 


viii 

THE FRAMEWORK AS UTOPIAN COMMON 
GROUND 317 

COMMUNITY AND NATION 320 

COMMUNITIES WHICH CHANGE 323 
TOTAL COMMUNITIES 325 
UTOPIAN MEANS AND ENDS 326 
HOW UTOPIA WORKS OUT 33 I 

UTOPIA AND THE MINIMAL STATE 333 

Notes 335 

Bibliography 355 

Index 361 



PREFACE 


ji-NDIVIDUALS have rights, and there are things no person or 
group may do to them (without violating their rights). So strong 
and far-reaching are these rights that they raise the question of 
what, if anything, the state and its officials may do. How much 
room do individual rights leave for the state? The nature of the 
state, its legitimate functions and its justifications, if any, is the 
central concern of this book; a wide and diverse variety of topics 
intertwine in the course of our investigation. 

Our main conclusions about the state are that a minimal state, 
limited to the narrow functions of protection against force, theft, 
fraud, enforcement of contracts, and so on, is justified; that any 
more extensive state will violate persons’ rights not to be forced to 
do certain things, and is unjustified; and that the minimal state is 
inspiring as well as right. Two noteworthy implications are that 
the state may not use its coercive apparatus for the purpose of get- 
ting some citizens to aid others, or in order to prohibit activities to 
people for their own good or protection. 

Despite the fact that it is only coercive routes toward these goals 
that are excluded, while voluntary ones remain, many persons will 
reject our conclusions instantly, knowing they don’t want to be- 
lieve anything so apparently callous toward the needs and suffering 
of others. I know that reaction; it was mine when I first began to 
consider such views. With reluctance, I found myself becoming 
convinced of (as they are now often called) libertarian views, due 
to various considerations and arguments. This book contains little 
evidence of my earlier reluctance. Instead, it contains many of the 
considerations and arguments, which I present as forcefully as I 
can. Thereby, I run the risk of offending doubly: for the position 


IX 



X 


Preface 


expounded, and for the fact that I produce reasons to support this 
position. 

My earlier reluctance is not present in this volume, because it 
has disappeared. Over time, I have grown accustomed to the views 
and their consequences, and I now see the political realm through 
them. (Should I say that they enable me to see through the po- 
litical realm?) Since many of the people who take a similar posi- 
tion are narrow and rigid, and filled, paradoxically, with resent- 
ment at other freer ways of being, my now having natural 
responses which fit the theory puts me in some bad company. I do 
not welcome the fact that most people I know and respect disagree 
with me, having outgrown the not wholly admirable pleasure of 
irritating or dumbfounding people by producing strong reasons to 
support positions they dislike or even detest. 

I write in the mode of much contemporary philosophical work 
in epistemology or metaphysics: there are elaborate arguments, 
claims rebutted by unlikely counterexamples, surprising theses, 
puzzles, abstract structural conditions, challenges to find another 
theory which fits a specified range of cases, startling conclusions, 
and so on. Though this makes for intellectual interest and excite- 
ment (I hope), some may feel that the truth about ethics and polit- 
ical philosophy is too serious and important to be obtained by such 
“flashy” tools. Nevertheless, it may be that correctness in ethics is 
not found in what we naturally think. 

A codification of the received view or an explication of accepted 
principles need not use elaborate arguments. It is thought to be an 
objection to other views merely to point out that they conflict 
with the view which readers wish anyway to accept. But a view 
which differs from the readers’ cannot argue for itself merely by 
pointing out that the received view conflicts with it! Instead, it 
will have to subject the received view to the greatest intellectual 
testing and strain, via counterarguments, scrutiny of its presup- 
positions, and presentation of a range of possible situations where 
even its proponents are uncomfortable with its consequences. 

Even the reader unconvinced by my arguments should find that, 
in the process of maintaining and supporting his view, he has clar- 
ified and deepened it. Moreover, I like to think, intellectual hon- 
esty demands that, occasionally at least, we go out of our way to 
confront strong arguments opposed to our views. How else are we 



Preface 


xi 


to protect ourselves from continuing in error? It seems only fair to 
remind the reader that intellectual honesty has its dangers; argu- 
ments read perhaps at first in curious fascination may come to con- 
vince and even to seem natural and intuitive. Only the refusal to 
listen guarantees one against being ensnared by the truth. 

The contents of this volume are its particular arguments; still, I 
can indicate further what is to come. Since I begin with a strong 
formulation of individual rights, I treat seriously the anarchist 
claim that in the course of maintaining its monopoly on the use of 
force and protecting everyone within a territory, the state must 
violate individuals’ rights and hence is intrinsically immoral. 
Against this claim, I argue that a state would arise from anarchy 
(as represented by Locke’s state of nature) even though no one in- 
tended this or tried to bring it about, by a process which need not 
violate anyone’s rights. Pursuing this central argument of Part I 
leads through a diversity of issues; these include why moral views 
involve side constraints on action rather than merely being goal- 
directed, the treatment of animals, why it is so satisfying to ex- 
plain complicated patterns as arising by processes in which no one 
intends them, the reasons why some actions are prohibited rather 
than allowed provided compensation is paid to their victims, the 
nonexistence of the deterrence theory of punishment, issues about 
prohibiting risky actions, Herbert Hart’s so-called “principle of 
fairness,” preemptive attack, and preventive detention. These 
issues and others are brought to bear in investigating the nature 
and moral legitimacy, of the state and of anarchy. 

Part I justifies the minimal state; Part II contends that no more 
extensive state can be justified. I proceed by arguing that a diver- 
sity of reasons which purport to justify a more extensive state, 
don’t. Against the claim that such a state is justified in order to 
achieve or produce distributive justice among its citizens, I de- 
velop a theory of justice (the entitlement theory) which does not 
require any more extensive state, and use the apparatus of this 
theory to dissect and criticize other theories of distributive justice 
which do envisage a more extensive state, focusing especially on 
the recent powerful theory of John Rawls. Other reasons that some 
might think justify a more extensive state are criticized, including 
equality, envy, workers’ control, and Marxian theories of exploita- 
tion. (Readers who find Part I difficult should find Part II easier, 



Preface 


xii 

with Chapter 8 easier than Chapter 7.) Part II closes with a hypo- 
thetical description of how a more extensive state might arise, a 
tale designed to make such a state quite unattractive. Even if the 
minimal state is the uniquely justifiable one, it may seem pale and 
unexciting, hardly something to inspire one or to present a goal 
worth fighting for. To assess this, I turn to that preeminently 
inspiring tradition of social thought, utopian theory, and argue 
that what can be saved from this tradition is precisely the structure 
of the minimal state. The argument involves a comparison of dif- 
ferent methods of shaping a society, design devices and filter de- 
vices, and the presentation of a model which invites application of 
the mathematical economist’s notion of the core of an economy. 

My emphasis upon the conclusions which diverge from what 
most readers believe may mislead one into thinking this book is 
some sort of political tract. It is not; it is a philosophical explora- 
tion of issues, many fascinating in their own right, which arise 
and interconnect when we consider individual rights and the state. 
The word “exploration” is appropriately chosen. One view about 
how to write a philosophy book holds that an author should think 
through all of the details of the view he presents, and its prob- 
lems, polishing and refining his view to present to the world a 
finished, complete, and elegant whole. This is not my view. At 
any rate, I believe that there also is a place and a function in our 
ongoing intellectual life for a less complete work, containing un- 
finished presentations, conjectures, open questions and problems, 
leads, side connections, as well as a main line of argument. There 
is room for words on subjects other than last words. 

Indeed, the usual manner of presenting philosophical work puz- 
zles me. Works of philosophy are written as though their authors 
believe them to be the absolutely final word on their subject. But 
it’s not, surely, that each philosopher thinks that he finally, thank 
God, has found the truth and built an impregnable fortress around 
it. We are all actually much more modest than that. For good 
reason. Having thought long and hard about the view he pro- 
poses, a philosopher has a reasonably good idea about its weak 
points; the places where great intellectual weight is placed upon 
something perhaps too fragile to bear it, the places where the 
unravelling of the view might begin, the unprobed assumptions 
he feels uneasy about. 



Preface 


xiii 

One form of philosophical activity feels like pushing and shov- 
ing things to fit into some fixed perimeter of specified shape. All 
those things are lying out there, and they must be fit in. You push 
and shove the material into the rigid area getting it into the 
boundary on one side, and it bulges out on another. You run 
around and press in the protruding bulge, producing yet another 
in another place. So you push and shove and clip off corners from 
the things so they’ll fit and you press in until finally almost every- 
thing sits unstably more or less in there; what doesn’t gets heaved 
far away so that it won’t be noticed. (Of course, it’s not all that 
crude. There’s also the coaxing and cajoling. And the body En- 
glish.) Quickly, you find an angle from which it looks like an exact 
fit and take a snapshot; at a fast shutter speed before something 
else bulges out too noticeably. Then, back to the darkroom to 
touch up the rents, rips, and tears in the fabric of the perimeter. 
All that remains is to publish the photograph as a representation 
of exactly how things are, and to note how nothing fits properly 
into any other shape. 

No philosopher says: “There’s where I started, here’s where I 
ended up; the major weakness in my work is that I went from 
there to here; in particular, here are the most notable distortions, 
pushings, shovings, maulings, gougings, stretchings, and chip- 
pings that I committed during the trip; not to mention the things 
thrown away and ignored, and all those avertings of gaze.” 

The reticence of philosophers about the weaknesses they per- 
ceive in their own views is not, I think, simply a question of 
philosophical honesty and integrity, though it is that or at least 
becomes that when brought to consciousness. The reticence is con- 
nected with philosophers’ purposes in formulating views. Why do 
they strive to force everything into that one fixed perimeter? Why 
not another perimeter, or, more radically, why not leave things 
where they are? What does having everything within a perimeter 
do for us? Why do we want it so? (What does it shield us from?) 
From these deep (and frightening) questions, I hope not to be able 
to manage to avert my gaze in future work. 

However, my reason for mentioning these issues here is not that 
I feel they pertain more strongly to this work than to other philo- 
sophical writings. What I say in this book is, I think, correct. 
This is not my way of taking it back. Rather, I propose to give it 



XIV 


Preface 


all to you: the doubts and worries and uncertainties as well as the 
beliefs, convictions, and arguments. 

At those particular points in my arguments, transitions, as- 
sumptions, and so forth, where I feel the strain, I try to comment 
or at least to draw the reader’s attention to what makes me uneasy. 
In advance, it is possible to voice some general theoretical worries. 
This book does not present a precise theory of the moral basis of 
individual rights; it does not contain a precise statement and jus- 
tification of a theory of retributive punishment; or a precise state- 
ment of the principles of the tripartite theory of distributive jus- 
tice it presents. Much of what I say rests upon or uses general 
features that I believe such theories would have were they worked 
out. I would like to write on these topics in the future. If I do, no 
doubt the resulting theory will differ from what I now expect it to 
be, and this would require some modifications in the superstruc- 
ture erected here. It would be foolish to expect that I shall com- 
plete these fundamental tasks satisfactorily; as it would be to 
remain silent until they are done. Perhaps this essay will stimulate 
others to help. 



ACKNOWLEDGMENTS 


JL.HE first nine chapters of this essay were written during 
1971— 1972, while I was a Fellow at the Center for Advanced 
Study in the Behavioral Sciences at Palo Alto, a minimally struc- 
tured academic institution bordering on individualist anarchy. I am 
very grateful to the Center and its staff for providing an environ- 
ment so conducive to getting things done. Chapter 10 was pre- 
sented in a symposium on “Utopia and Utopianism” at a meeting 
of the Eastern Division of the American Philosophical Association 
in 1969; some points from that delivered address appear scattered 
in the other chapters. The whole manuscript was rewritten during 
the summer of 1973. 

Barbara Nozick’s objections to some of the positions defended 
here helped me to sharpen my views; in addition she helped enor- 
mously in innumerable other ways. Over several years, I have bene- 
fited from Michael Walzer’s comments, questions, and counter- 
arguments as I tried out on him ideas on some topics of this essay. 
I have received detailed and very helpful written comments 
on the whole manuscript written at the Center from W. V. 
Quine, Derek Parfit, and Gilbert Harman, on Chapter 7 from 
John Rawls and Frank Michelman, and on an earlier draft of Part I 
from Alan Dershowitz. I also have benefited from a discussion 
with Ronald Dworkin on how competing protective agencies 
would(n’t) work, and from suggestions by Burton Dreben. Various 
stages of various portions of this manuscript were read and dis- 
cussed, over the years, at meetings of the Society for Ethical and 
Legal Philosophy (SELF); the regular discussions with its members 
have been a source of intellectual stimulation and pleasure. It was 
a long conversation about six years ago with Murray Rothbard that 
stimulated my interest in individualist anarchist theory. Even 


xv 



XVI 


Acknowledgments 


longer ago, arguments with Bruce Goldberg led me to take liber- 
tarian views seriously enough to want to refute them, and so to 
pursue the subject further. The result is before the reader. 



PART 

I 

State -of -Nature Theory, 
or How to Back into a State 
without Really Trying 





CHAPTER 

1 


Why State -of-Nature 
Theory ? 


jL F the state did not exist would it be necessary to invent it? 
Would one be needed, and would it have to be invented? These 
questions arise for political philosophy and for a theory explaining 
political phenomena and are answered by investigating the “state 
of nature,” to use the terminology of traditional political theory. 
The justification for resuscitating this archaic notion would have to 
be the fruitfulness, interest, and far-reaching implications of the 
theory that results. For the (less trusting) readers who desire some 
assurance in advance, this chapter discusses reasons why it is im- 
portant to pursue state-of-nature theory, reasons for thinking that 
theory would be a fruitful one. These reasons necessarily are some- 
what abstract and metatheoretical. The best reason is the developed 
theory itself. 



4 


State-of-Nature Theory 


POLITICAL PHILOSOPHY 

The fundamental question of political philosophy, one that pre- 
cedes questions about how the state should be organized, is 
whether there should be any state at all. Why not have anarchy? 
Since anarchist theory, if tenable, undercuts the whole subject of 
political philosophy, it is appropriate to begin political philosophy 
with an examination of its major theoretical alternative. Those 
who consider anarchism not an unattractive doctrine will think it 
possible that political philosophy ends here as well. Others impa- 
tiently will await what is to come afterwards. Yet, as we shall see, 
archists and anarchists alike, those who spring gingerly from the 
starting point as well as those reluctantly argued away from it, can 
agree that beginning the subject of political philosophy with state- 
of-nature theory has an explanatory purpose. (Such a purpose is ab- 
sent when epistemology is begun with an attempt to refute the 
skeptic.) 

Which anarchic situation should we investigate to answer the 
question of why not anarchy? Perhaps the one that would exist if 
the actual political situation didn’t, while no other possible politi- 
cal one did. But apart from the gratuitous assumption that every- 
one everywhere would be in the same nonstate boat and the enor- 
mous unmanageability of pursuing that counterfactual to arrive at 
a particular situation, that situation would lack fundamental theo- 
retical interest. To be sure, if that nonstate situation were suf- 
ficiently awful, there would be a reason to refrain from disman- 
tling or destroying a particular state and replacing it with none, 
now. 

It would be more promising to focus upon a fundamental ab- 
stract description that would encompass all situations of interest, 
including “where we would now be if.” Were this description 
awful enough, the state would come out as a preferred alternative, 
viewed as affectionately as a trip to the dentist. Such awful de- 
scriptions rarely convince, and not merely because they fail to 
cheer. The subjects of psychology and sociology are far too feeble 
to support generalizing so pessimistically across all societies and 
persons, especially since the argument depends upon not making 
such pessimistic assumptions about how the state operates. Of 



Why State-of-Nature Theory? 


5 


course, people know something of how actual states have operated, 
and they differ in their views. Given the enormous importance of 
the choice between the state and anarchy, caution might suggest 
one use the “minimax” criterion, and focus upon a pessimistic es- 
timate of the nonstate situation: the state would be compared with 
the most pessimistically described Hobbesian state of nature. But 
in using the minimax criterion, this Hobbesian situation should 
be compared with the most pessimistically described possible 
state, including future ones. Such a comparison, surely, the worst 
state of nature would win. Those who view the state as an abomi- 
nation will not find minimax very compelling, especially since it 
seems one could always bring back the state if that came to seem 
desirable. The “maximax” criterion, on the other hand, would 
proceed on the most optimistic assumptions about how things 
would work out — Godwin, if you like that sort of thing. But 
imprudent optimism also lacks conviction. Indeed, no proposed 
decision criterion for choice under uncertainty carries conviction 
here, nor does maximizing expected utility on the basis of such 
frail probabilities. 

More to the point, especially for deciding what goals one should 
try to achieve, would be to focus upon a nonstate situation in 
which people generally satisfy moral constraints and generally act 
as they ought. Such an assumption is not wildly optimistic; it does 
not assume that all people act exactly as they should. Yet this 
state-of-nature situation is the best anarchic situation one reason- 
ably could hope for. Hence investigating its nature and defects is of 
crucial importance to deciding whether there should be a state 
rather than anarchy. If one could show that the state would be su- 
perior even to this most favored situation of anarchy, the best that 
realistically can be hoped for, or would arise by a process involving 
no morally impermissible steps, or would be an improvement if it 
arose, this would provide a rationale for the state’s existence; it 
would justify the state.* 

This investigation will raise the question of whether all the ac- 


* This contrasts with a theory that presents a state’s arising from a state of 
nature by a natural and inevitable process of deterioration . rather as medical 
theory presents aging or dying. Such a theory would not “justify" the state, 
though it might resign us to its existence. 



6 


State-of-Nature Theory 


tions persons must do to set up and operate a state are themselves 
morally permissible. Some anarchists have claimed not merely that 
we would be better off without a state, but that any state necessar- 
ily violates people’s moral rights and hence is intrinsically im- 
moral. Our starting point then, though nonpolitical, is by inten- 
tion far from nonmoral. Moral philosophy sets the background for, 
and boundaries of, political philosophy. What persons may and 
may not do to one another limits what they may do through the 
apparatus of a state, or do to establish such an apparatus. The 
moral prohibitions it is permissible to enforce are the source of 
whatever legitimacy the state’s fundamental coercive power has. 
(Fundamental coercive power is power not resting upon any con- 
sent of the person to whom it is applied.) This provides a primary 
arena of state activity, perhaps the only legitimate arena. Further- 
more, to the extent moral philosophy is unclear and gives rise to 
disagreements in people’s moral judgments, it also sets problems 
which one might think could be appropriately handled in the po- 
litical arena. 


EXPLANATORY POLITICAL THEORY 

In addition to its importance for political philosophy, the inves- 
tigation of this state of nature also will serve explanatory purposes. 
The possible ways of understanding the political realm are as 
follows: (i) to fully explain it in terms of the nonpolitical; (2) to 
view it as emerging from the nonpolitical but irreducible to it, a 
mode of organization of nonpolitical factors understandable only in 
terms of novel political principles; or (3) to view it as a completely 
autonomous realm. Since only the first promises full under- 
standing of the whole political realm, 1 it stands as the most de- 
sirable theoretical alternative, to be abandoned only if known to be 
impossible. Let us call this most desirable and complete kind of 
explanation of a realm a fundamental explanation of the realm. 

To explain fundamentally the political in terms of the nonpolit- 
ical, one might start either with a nonpolitical situation, showing 
how and why a political one later would arise out of it, or with a 



Why State-of-Nature Theory? 


7 


political situation that is described nonpolitically, deriving its po- 
litical features from its nonpolitical description. This latter deriva- 
tion either will identify the political features with those features 
nonpolitically described, or will use scientific laws to connect dis- 
tinct features. Except perhaps for this last mode, the illumination 
of the explanation will vary directly with the independent glow of 
the nonpolitical starting point (be it situation or description) and 
with the distance, real or apparent, of the starting point from its 
political result. The more fundamental the starting point (the 
more it picks out basic, important, and inescapable features of the 
human situation) and the less close it is or seems to its result (the 
less political or statelike it looks), the better. It would not increase 
understanding to reach the state from an arbitrary and otherwise 
unimportant starting point, obviously adjacent to it from the 
start. Whereas discovering that political features and relations 
were reducible to, or identical with, ostensibly very different non- 
political ones would be an exciting result. Were these features fun- 
damental, the political realm would be firmly and deeply based. 
So far are we from such a major theoretical advance that prudence 
alone would recommend that we pursue the alternative of showing 
how a political situation would arise out of a nonpolitical one; that 
is, that we begin a fundamental explanatory account with what- is 
familiar within political philosophy as state-of-nature theory. 

A theory of a state of nature that begins with fundamental gen- 
eral descriptions of morally permissible and impermissible actions, 
and of deeply based reasons why some persons in any society would 
violate these moral constraints, and goes on to describe how a state 
would arise from that state of nature will serve our explanatory 
purposes, even if no actual state ever arose that way. Hempel has dis- 
cussed the notion of a potential explanation, which intuitively 
(and roughly) is what would be the correct explanation if every- 
thing mentioned in it were true and operated . 2 Let us say that a 
law-defective potential explanation is a potential explanation with a 
false lawlike statement and that a fact-defective potential explana- 
tion is a potential explanation with a false antecedent condition. A 
potential explanation that explains a phenomenon as the result of a 
process P will be defective (even though it is neither law-defective 
nor fact-defective) if some process Q other than P produced the 



8 


State-of-Nature Theory 


phenomenon, though P was capable of doing it. Had this other 
process Q not produced it, then P would have.* Let us call a po- 
tential explanation that fails in this way actually to explain the 
phenomenon a process-defective potential explanation. 

A fundamental potential explanation (an explanation that would 
explain the whole realm under consideration were it the actual ex- 
planation) carries important explanatory illumination even if it is 
not the correct explanation. To see how, in principle, a whole realm 
could fundamentally be explained greatly increases our under- 
standing of the realm. + It is difficult to say more without examin- 
ing types of cases; indeed, without examining particular cases, but 
this we cannot do here. Fact-defective fundamental potential ex- 
planations, if their false initial conditions “could have been true,” 
will carry great illumination; even wildly false initial conditions 
will illuminate, sometimes very greatly. Law-defective fundamen- 
tal potential explanations may illuminate the nature of a realm al- 
most as well as the correct explanations, especially if the “laws” 
together form an interesting and integrated theory. And process- 
defective fundamental potential explanations (which are neither 
law-defective nor fact-defective) fit our explanatory bill and pur- 
poses almost perfectly. These things could not be said as strongly, 
if at all, about nonfundamental explanation. 

State-of-nature explanations of the political realm are fundamen- 
tal potential explanations of this realm and pack explanatory 


* Or, perhaps yet another process R would have if Q hadn’t, though had R 
not produced the phenomenon, then P would have, or. . . - So the footnoted 
sentence should read: P would have produced the phenomenon had no member 
of [Q, R, . . .] done so. We ignore here the complication that what would 
prevent Q from producing the phenomenon might also prevent P from doing 
so. 

t This claim needs to be qualified. It will not increase our understanding of 
a realm to be told as a potential explanation what we know to be false: that by 
doing a certain dance, ghosts or witches or goblins made the realm that way. It 
is plausible to think that an explanation of a realm must present an underlying 
mechanism yielding the realm. (Or do something else equally productive of un- 
derstanding.) But to say this is not to state precisely the deep conditions an un- 
derlying mechanism must satisfy to explain a realm. The precise qualification of 
the claim in the text awaits advances in the theory of explanation. Yet other dif- 
ficulties call for such advances; see Jaegwon Kim, "Causation, Nomic Subsump- 
tion, and the Concept of Event,” The Journal of Philosophy, 70, no. 8 (April 26, 
i973)> 217-236. 



Why State-of-Nature Theory? 


9 


punch and illumination, even if incorrect. We learn much by 
seeing how the state could have arisen, even if it didn’t arise that 
way. If it didn’t arise that way, we also would learn much by de- 
termining why it didn’t; by trying to explain why the particular 
bit of the real world that diverges from the state-of-nature model 
is as it is. 

Since considerations both of political philosophy and of explana- 
tory political theory converge upon Locke’s state of nature, we 
shall begin with that. More accurately, we shall begin with indi- 
viduals in something sufficiently similar to Locke’s state of nature 
so that many of the otherwise important differences may be ig- 
nored here. Only when some divergence between our conception 
and Locke’s is relevant to political philosophy, to our argument 
about the state, will it be mentioned. The completely accurate 
statement of the moral background, including the precise state- 
ment of the moral theory and its underlying basis, would require a 
full-scale presentation and is a task for another time. (A lifetime?) 
That task is so crucial, the gap left without its accomplishment so 
yawning, that it is only a minor comfort to note that we here are 
following the respectable tradition of Locke, who does not pro- 
vide anything remotely resembling a satisfactory explanation of 
the status and basis of the law of nature in his Second Treatise. 



CHAPTER 

2 


The State of Nature 


j^NDI VI DUALS in Locke's state of nature are in "a state of per- 
feet freedom to order their actions and dispose of their possessions 
and persons as they think fit, within the bounds of the law of na- 
ture, without asking leave or dependency upon the will of any 
other man” (sect. 4). 1 The bounds of the law of nature require that 
“no one ought to harm another in his life, health, liberty, or pos- 
sessions” (sect. 6). Some persons transgress these bounds, “invad- 
ing others’ rights and . . . doing hurt to one another,” and in 
response people may defend themselves or others against such 
invaders of rights (chap. 3). The injured party and his agents may 
recover from the offender “so much as may make satisfaction for 
the harm he has suffered” (sect. 10); “everyone has a right to 
punish the transgressors of that law to such a degree as may hinder 
its violation” (sect. 7); each person may, and may only “retribute 
to (a criminal] so far as calm reason and conscience dictate, what is 
proportionate to his transgression, which is so much as may serve 
for reparation and restraint” (sect. 8). 

There are “inconveniences of the state of nature” for which, says 
Locke, “I easily grant that civil government is the proper remedy” 
(sect. 13). To understand precisely what civil government reme- 
dies, we must do more than repeat Locke’s list of the inconve- 
niences of the state of nature. We also must consider what ar- 
rangements might be made within a state of nature to deal with 

10 



The State of Nature 


1 1 

these inconveniences — -to avoid them or to make them less likely 
to arise or to make them less serious on the occasions when they do 
arise. Only after the full resources of the state of nature are 
brought into play, namely all those voluntary arrangements and 
agreements persons might reach acting within their rights, and 
only after the effects of these are estimated, will we be in a posi- 
tion to see how serious are the inconveniences that yet remain to 
be remedied by the state, and to estimate whether the remedy is 
worse than the disease.* 

In a state of nature, the understood natural law may not provide 
for every contingency in a proper fashion (see sections 159 and 160 
where Locke makes this point about legal systems, but contrast 
section 124), and men who judge in their own case will always 
give themselves the benefit of the doubt and assume that they are 
in the right. They will overestimate the amount of harm or dam- 
age they have suffered, and passions will lead them to attempt to 
punish others more than proportionately and to exact excessive 
compensation (sects. 13, 124, 125). Thus private and personal en- 
forcement of one’s rights (including those rights that are violated 
when one is excessively punished) leads to feuds, to an endless 
series of acts of retaliation and exactions of compensation. And 
there is no firm way to settle such a dispute, to end it and to have 
both parties know it is ended. Even if one party says he’ll stop his 

* Proudhon has given us a description of the state's domestic “inconve- 
niences.” “To be GOVERNED is to be watched, inspected, spied upon, di- 
rected, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, 
controlled, checked, estimated, valued, censured, commanded, by creatures 
who have neither the right nor the wisdom nor the virtue to do so. To be GOV- 
ERNED is to be at every operation, at every transaction noted, registered, 
counted, taxed, stamped, measured, numbered, assessed, licensed, authorized, 
admonished, prevented, forbidden, reformed, corrected, punished. It is, under 
pretext of public utility, and in the name of the general interest, to be placed 
under contribution, drilled, fleeced, exploited, monopolized, extorted from, 
squeezed, hoaxed, robbed; then, at the slightest resistance, the first word of 
complaint, to be repressed, fined, vilified, harrassed, hunted down, abused, 
clubbed, disarmed, bound, choked, imprisoned, judged, condemned, shot, 
deported, sacrificed, sold, betrayed; and to crown all, mocked, ridiculed, de- 
rided, outraged, dishonored. That is government; that is its justice; that is 
its morality.” P. J. Proudhon, General Idea of the Revolution in the Nineteenth 
Century, trans. John Beverly Robinson (London: Freedom Press, 1923), pp. 
293—294, with some alterations from Benjamin Tucker’s translation in Instead of 
a Book (New York, 1893), p. 26. 



12 


State-of-Nature Theory 


acts of retaliation, the other can rest secure only if he knows the 
first still does not feel entitled to gain recompense or to exact retri- 
bution, and therefore entitled to try when a promising occasion 
presents itself. Any method a single individual might use in an at- 
tempt irrevocably to bind himself into ending his part in a feud 
would offer insufficient assurance to the other party; tacit agree- 
ments to stop also would be unstable. 2 Such feelings of being mu- 
tually wronged can occur even with the clearest right and with 
joint agreement on the facts of each person’s conduct; all the more 
is there opportunity for such retaliatory battle when the facts or 
the rights are to some extent unclear. Also, in a state of nature a 
person may lack the power to enforce his rights; he may be unable 
to punish or exact compensation from a stronger adversary who has 
violated them (sects. 123, 126). 


PROTECTIVE ASSOCIATIONS 

How might one deal with these troubles within a state of nature? 
Let us begin with the last. In a state of nature an individual may 
himself enforce his rights, defend himself exact compensation, 
and punish (or at least try his best to do so). Others may join with 
him in his defense, at his call. 3 They may join with him to repulse 
an attacker or to go after an aggressor because they are public spir- 
ited, or because they are his friends, or because he has helped them 
in the past, or because they wish him to help them in the future, 
or in exchange for something. Groups of individuals may form 
mutual-protection associations: all will answer the call of any 
member for defense or for the enforcement of his rights. In union 
there is strength. Two inconveniences attend such simple mutual- 
protection associations: (1) everyone is always on call to serve a 
protective function (and how shall it be decided who shall answer 
the call for those protective functions that do not require the ser- 
vices of all members?); and (2) any member may call out his asso- 
ciates by saying his rights are being, or have been, violated. Pro- 
tective associations will not want to be at the beck and call of their 
cantankerous or paranoid members, not to mention those of their 
members who might attempt, under the guise of self-defense, to 



The State of Nature 


13 


use the association to violate the rights of others. Difficulties will 
also arise if two different members of the same association are in 
dispute, each calling upon his fellow members to come to his aid. 

A mutual-protection association might attempt to deal with 
conflict among its own members by a policy of nonintervention. 
But this policy would bring discord within the association and 
might lead to the formation of subgroups who might fight among 
themselves and thus cause the breakup of the association. This pol- 
icy would also encourage potential aggressors to join as many mu- 
tual-protection associations as possible in order to gain immunity 
from retaliatory or defensive action, thus placing a great burden on 
the adequacy of the initial screening procedure of the association. 
Thus protective associations (almost all of those that will survive 
which people will join) will not follow a policy of nonintervention; 
they will use some procedure to determine how to act when some 
members claim that other members have violated their rights. 
Many arbitrary procedures can be imagined (for example, act on 
the side of that member who complains first), but most persons 
will want to join associations that follow some procedure to find 
out which claimant is correct. When a member of the association 
is in conflict with nonmembers, the association also will want to 
determine in some fashion who is in the right, if only to avoid 
constant and costly involvement in each member’s quarrels, 
whether just or unjust. The inconvenience of everyone’s being on 
call, whatever their activity at the moment or inclinations or com- 
parative advantage, can be handled in the usual manner by divi- 
sion of labor and exchange. Some people will be hired to perform 
protective functions, and some entrepreneurs will go into the busi- 
ness of selling protective services. Different sorts of protective 
policies would be offered, at different prices, for those who may 
desire more extensive or elaborate protection . 4 

An individual might make more particular arrangements or 
commitments short of turning over to a private protective agency 
all functions of detection, apprehension, judicial determination of 
guilt, punishment, and exaction of compensation. Mindful of the 
dangers of being the judge in his own case, he might turn the 
decision as to whether he has indeed been wronged, and to what 
extent, to some other neutral or less involved party. In order for 
the occurrence of the social effect of justice’s being seen to be 



i4 


State-of-Nature Theory 


done, such a party would have to be generally fespected and 
thought to be neutral and upright. Both parties to a dispute may 
so attempt to safeguard themselves against the appearance of par- 
tiality, and both might even agree upon the same person as the 
judge between them, and agree to abide by his decision. (Or there 
might be a specified process through which one of the parties dis- 
satisfied with the decision could appeal it.) But, for obvious rea- 
sons, there will be strong tendencies for the above-mentioned 
functions to converge in the same agent or agency. 

People sometimes now do take their disputes outside of the state’s 
legal system to other judges or courts they have chosen, for ex- 
ample, to religious courts . 5 If all parties to a dispute find some ac- 
tivities of the state or its legal system so repellent that they want 
nothing to do with it, they might agree to forms of arbitration or 
judgment outside the apparatus of the state. People tend to forget 
the possibilities of acting independently of the state. (Similarly, 
persons who want to be paternalistically regulated forget the possi- 
bilities of contracting into particular limitations on their own be- 
havior or appointing a given paternalistic supervisory board over 
themselves. Instead, they swallow the exact pattern of restrictions 
a legislature happens to pass. Is there really someone who, search- 
ing for a group of wise and sensitive persons to regulate him for 
his own good, would choose that group of people who constitute 
the membership of both houses of Congress?) Diverse forms of 
judicial adjudication, differing from the particular package the 
state provides, certainly could be developed. Nor do the costs of 
developing and choosing these account for people’s use of the state 
form. For it would be easy to have a large number of preset 
packages which parties could select. Presumably what drives peo- 
ple to use the state’s system of justice is the issue of ultimate en- 
forcement. Only the state can enforce a judgment against the will 
of one of the parties. For the state does not allow anyone else to en- 
force another system’s judgment. So in any dispute in which both 
parties cannot agree upon a method of settlement, or in any dis- 
pute in which one party does not trust another to abide by the 
decision (if the other contracts to forfeit something of enormous 
value if he doesn’t abide by the decision, by what agency is that 
contract to be enforced?), the parties who wish their claims put 
into effect will have no recourse permitted by the state’s legal sys- 



The State of Nature 


15 


tem other than to use that very legal system. This may present 
persons greatly opposed to a given state system with particularly 
poignant and painful choices. (If the state’s legal system enforces 
the results of certain arbitration procedures, people may come to 
agree — supposing they abide by this agreement — without any ac- 
tual direct contact with what they perceive to be officers or institu- 
tions of the state. But this holds as well if they sign a contract that 
is enforced only by the state.) 

Will protective agencies require that their clients renounce exer- 
cising their right of private retaliation if they have been wronged 
by nonclients of the agency? Such retaliation may well lead to 
counterretaliation by another agency or individual, and a protec- 
tive agency would not wish at that late stage to get drawn into the 
messy affair by having to defend its client against the counter- 
retaliation. Protective agencies would refuse to protect against 
counterretaliation unless they had first given permission for the re- 
taliation.- (Though might they not merely charge much more for 
the more extensive protection policy that provides such coverage?) 
The protective agencies need not even require that as part of his 
agreement with the agency, a client renounce, by contract, his 
right of private enforcement of justice against its other clients. The 
agency need only refuse a client C, who privately enforces his 
rights against other clients, any protection against counterretalia- 
tion upon him by these other clients. This is similar to what 
occurs if C acts against a nonclient. The additional fact that C acts 
upon a client of the agency means that the agency will act toward 
C as it would toward any nonclient who privately enforced his 
rights upon any one of its clients (see Chapter 5). This reduces in- 
tra-agency private enforcement of rights to minuscule levels. 


THE DOMINANT PROTECTIVE ASSOCIATION 

Initially, several different protective associations or companies will 
offer their services in the same geographical area. What will occur 
when there is a conflict between clients of different agencies? 
Things are relatively simple if the agencies reach the same decision 
about the disposition of the case. (Though each might want to 



1 6 State-of-Nature Theory 

exact the penalty.) But what happens if they reach different deci- 
sions as to the merits of the case, and one agency attempts to 
protect its client while the other is attempting to punish him or 
make him pay compensation? Only three possibilities are worth 
considering: 

1. In such situations the forces of the two agencies do battle. One of 
the agencies always wins such battles. Since the clients of the losing 
agency are ill protected in conflicts with clients of the winning 
agency, they leave their agency to do business with the winner. 6 

2. One agency has its power centered in one geographical area, the 
other in another. Each wins the battles fought close to its center of 
power, with some gradient being established. 7 People who deal 
with one agency but live under the power of the other either move 
closer to their own agency’s home headquarters or shift their pa- 
tronage to the other protective agency. (The border is about as 
conflictful as one between states.) 

In neither of these two cases does there remain very much geo- 
graphical interspersal. Only one protective agency operates over a 
given geographical area. 

3. The two agencies fight evenly and often. They win and lose about 
equally, and their interspersed members have frequent dealings and 
disputes with each other. Or perhaps without fighting or after only 
a few skirmishes the agencies realize that such battling will occur 
continually in the absence of preventive measures. In any case, to 
avoid frequent, costly, and wasteful battles the two agencies, per- 
haps through their executives, agree to resolve peacefully those 
cases about which they reach differing judgments. They agree to set 
up, and abide by the decisions of, some third judge or court to 
which they can turn when their respective judgments differ. (Or 
they might establish rules determining which agency has jurisdic- 
tion under which circumstances.) 8 Thus emerges a system of ap- 
peals courts and agreed upon rules about jurisdiction and the con- 
flict of laws. Though different agencies operate, there is one unified 
federal judicial system of which they all are components. 

In each of these cases, almost all the persons in a geographical 
area are under some common system that judges between their 
competing claims and enforces their rights. Out of anarchy, pressed 
by spontaneous groupings, mutual-protection associations, divi- 
sion of labor, market pressures, economies of scale, and rational 



The State of Nature 


17 


self-interest there arises something very much resembling a mini- 
mal state or a group of geographically distinct minimal states. 
Why is this market different from all other markets? Why would a 
virtual monopoly arise in this market without the government in- 
tervention that elsewhere creates and maintains it? 9 The worth of 
the product purchased, protection against others, is relative: it 
depends upon how strong the others are. Yet unlike other goods 
that are comparatively evaluated, maximal competing protective 
services cannot coexist; the nature of the service brings different 
agencies not only into competition for customers’ patronage, but 
also into violent conflict with each other. Also, since the worth of 
the less than maximal product declines disproportionately with the 
number who purchase the maximal product, customers will not 
stably settle for the lesser good, and competing companies are 
caught in a declining spiral. Hence the three possibilities we have 
listed. 

Our story above assumes that each of the agencies attempts in 
good faith to act within the limits of Locke’s law of nature . 10 But 
one “protective association” might aggress against other persons. 
Relative to Locke’s law of nature, it would be an outlaw agency. 
What actual counterweights would there be to its power? (What 
actual counterweights are there to the power of a state?) Other 
agencies might unite to act against it. People might refuse to deal 
with the outlaw agency’s clients, boycotting them to reduce the 
probability of the agency’s intervening in their own affairs. This 
might make it more difficult for the outlaw agency to get clients; 
but this boycott will seem an effective tool only on very optimistic 
assumptions about what cannot be kept secret, and about the costs 
to an individual of partial boycott as compared to the benefits of 
receiving the more extensive coverage offered by an “outlaw” 
agency. If the “outlaw” agency simply is an open aggressor, pillag- 
ing, plundering, and extorting under no plausible claim of justice, 
it will have a harder time than states. For the state’s claim to legit- 
imacy induces its citizens to believe they have some duty to obey 
its edicts, pay its taxes, fight its battles, and so on; and so some 
persons cooperate with it voluntarily. An openly aggressive agency 
could not depend upon, and would not receive, any such voluntary 
cooperation, since persons would view themselves simply as its 
victims rather than as its citizens . 11 



i8 


State-of-Nature Theory 


INVISIBLE-HAND EXPLANATIONS 

How, if at all, does a dominant protective association differ from the 
state? Was Locke wrong in imagining a compact necessary to es- 
tablish civil society? As he was wrong in thinking (sects. 46, 47, 
50) that an “agreement,” or “mutual consent,” was needed to es- 
tablish the “invention of money.” Within a barter system, there is 
great inconvenience and cost to searching for someone who has 
what you want and wants what you have, even at a marketplace, 
which, we should note, needn’t become a marketplace by every- 
one’s expressly agreeing to deal there. People will exchange their 
goods for something they know to be more generally wanted than 
what they have. For it will be more likely that they can exchange 
this for what they want. For the same reasons others will be more 
willing to take in exchange this more generally desired thing. 
Thus persons will converge in exchanges on the more marketable 
goods, being willing to exchange their goods for them; the more 
willing, the more they know others who are also willing to do so, 
in a mutually reinforcing process. (This process will be reinforced 
and hastened by middlemen seeking to profit in facilitating 
exchanges, who themselves will often find it most expedient to 
offer more marketable goods in exchange.) For obvious reasons, 
the goods they converge on, via their individual decisions, will 
have certain properties: initial independent value (else they 
wouldn’t begin as more marketable), physically enduring, non- 
perishable, divisible, portable, and so forth. No express agreement 
and no social contract fixing a medium of exchange is necessary. 12 

There is a certain lovely quality to explanations of this sort. 
They show how some overall pattern or design, which one would 
have thought had to be produced by an individual’s or group’s suc- 
cessful attempt to realize the pattern, instead was produced and 
maintained by a process that in no way had the overall pattern or 
design “in mind.” After Adam Smith, we shall call such explana- 
tions invisible-hand explanations. (“Every individual intends only his 
own gain, and he is in this, as in so many other cases, led by an 
invisible hand to promote an end which was no part of his inten- 
tion.”) The specially satisfying quality of invisible-hand explana- 
tions (a quality I hope is possessed by this book’s account of the 



The State of Nature 


19 


state) is partially explained by its connection with the notion of 
fundamental explanation adumbrated in Chapter 1. Fundamental 
explanations of a realm are explanations of the realm in other 
terms; they make no use of any of the notions of the realm. Only 
via such explanations can we explain and hence understand every- 
thing about a realm; the less our explanations use notions constitut- 
ing what is to be explained, the more ( ceteris paribus) we under- 
stand. Consider now complicated patterns which one would have 
thought could arise only through intelligent design, only through 
some attempt to realize the pattern. One might attempt straight- 
forwardly to explain such patterns in terms of the desires, wants, 
beliefs, and so on, of individuals, directed toward realizing the 
pattern. But within such explanations will appear descriptions of 
the pattern, at least within quotation marks, as objects of belief and 
desire. The explanation itself will say that some individuals desire 
to bring about something with (some of) the pattern-features, that 
some individuals believe that the only (or the best, or the . . . ,) 
way to bring about the realization of the pattern features is to 
. . . , and so on. Invisible-hand explanations minimize the use of 
notions constituting the phenomena to be explained; in contrast to 
the straightforward explanations, they don’t explain complicated 
patterns by including the full-blown pattern-notions as objects of 
people’s desires or beliefs. Invisible- hand explanations of phenom- 
ena thus yield greater understanding than do explanations of them 
as brought about by design as the object of people’s intentions. It 
therefore is no surprise that they are more satisfying. 

An invisible-hand explanation explains what looks to be the 
product of someone’s intentional design, as not being brought 
about by anyone’s intentions. We might call the opposite sort of ex- 
planation a “hidden-hand explanation.” A hidden-hand explana- 
tion explains what looks to be merely a disconnected set of facts 
that (certainly) is not the product of intentional design, as the 
product of an individual’s or group’s intentional design(s). Some 
persons also find such explanations satisfying, as is evidenced by 
the popularity of conspiracy theories. 

Someone might so prize each type of explanation, invisible hand 
and hidden hand, that he might attempt the Sisyphean task of 
explaining each purported nondesigned or coincidental set of iso- 
lated facts as the product of intentional design, and each purported 



20 


State-of-Nature Theory 


product of design as a nondesigned set of facts! It would be quite 
lovely to continue this iteration for a bit, even through only one 
complete cycle. 

Since I offer no explicit account of invisible-hand explana- 
tions, 13 and since the notion plays a role in what follows, I men- 
tion some examples to give the reader a clearer idea of what we 
have in mind when speaking of this type of explanation. (Ex- 
amples given to illustrate the type of explanation need not be cor- 
rect explanations.) 

1. Explanations within evolutionary theory (via random mutation, 
natural selection, genetic drift, and so on) of traits of organisms 
and populations. (James Crow and Motoo Kimura survey mathe- 
matical formulations in An Introduction to Population Genetics Theory 
(New York: Harper & Row, 1970). 

2. Explanations within ecology of the regulation of animal popula- 
tions. (See Lawrence Slobodkin, Growth and Regulation of Animal 
Populations [New York: Holt, Rinehart & Winston, 1966} for a 
survey.) 

3. Thomas Schelling’s explanatory model (American Economic Review, 
May 1969, pp. 488—493) showing how extreme residential seg- 
regation patterns are producible by individuals who do not desire 
this but want, for example, to live in neighborhoods 55 percent of 
whose population is in their own group, and who switch their 
place of residence to achieve their goal. 

4. Certain operant-conditioning explanations of various complicated 
patterns of behavior. 

5. Richard Herrnstein’s discussion of the genetic factors in a society's 
pattern of class stratification (I.Q. in the Meritocracy, Atlantic 
Monthly Press, 1973). 

6. Discussions of how economic calculation is accomplished in mar- 
kets. (See Ludwig von Mises, Socialism, Part II, Human Action, 
Chapters 4, 7—9.) 

7. Microeconomic explanations of the effects of outside intervention 
in a market, and of the establishment and nature of the new 
equilibria. 

8. Jane Jacobs’ explanation of what makes some parts of cities safe in 
The Death and Life of Great American Cities (New York: Random 
House, 1961). 

9. The Austrian theory of the trade cycle. 

10. Karl Deutsch and William Madow’s observation that in an organi- 
zation with a large number of important decisions (which can later 
be evaluated for correctness) to be made among few alternatives, if 
large numbers of people have a chance to say which way the 



The State of Nature 


21 


decision should be made, a number of persons will gain reputa- 
tions as sage advisers, even if all randomly decide what advice to 
offer. (“Note on the Appearance of Wisdom in Large Bureaucratic 
Organizations,” Behavioral Science, January 1961, pp. 72—78.) 

1 1 . The patterns arising through the operation of a modification of 
Frederick Frey’s modification of the Peter Principle: people have 
risen three levels beyond their level of incompetence by the time 
their incompetence is detected. 

12. Roberta Wohlstetter’s explanation {Pearl Harbor: Warning and De- 
cision [Stanford: Stanford University Press, 1962]), contra the 
“conspiracy” theorists, of why the United States didn’t act on the 
evidence it possessed indicating a Japanese attack forthcoming on 
Pearl Harbor. 

13. That explanation of “the intellectual preeminence of the Jews” 
that focuses on the great number of the most intelligent male 
Catholics who, for centuries, had no children, in contrast to the 
encouragement given rabbis to marry and reproduce. 

14. The theory of how public goods aren’t supplied solely by individ- 
ual action. 

15. Armen Alchian’s pointing to a different invisible hand (in our later 
terminology, a filter) than does Adam Smith (“Uncertainty, Evo- 
lution, and Economic Theory Journal of Political Economy, 1950, 
pp. 2 1 1-22 1 ). 

16. F. A. Hayek’s explanation of how social cooperation utilizes more 
knowledge than any individual possesses, through people adjust- 
ing their activities on the basis of how other people’s similarly ad- 
justed activities affect their local situations and through following 
examples they are presented with, and thereby creates new institu- 
tional forms, general modes of behavior, and so on {The Constitu- 
tion of Liberty, chap. 2). 

A rewarding research activity would be to catalog the different 
modes (and combinations) of invisible-hand explanations, specify- 
ing which types of invisible-hand explanations can explain which 
types of patterns. We can mention here two types of invisible- 
hand processes by which a pattern P can be produced: filtering 
processes and equilibrium processes. Through filtering processes 
can pass only things fitting P, because processes or structures filter 
out all non-P’s; in equilibrium processes each component part 
responds or adjusts to “local” conditions, with each adjustment 
changing the local environment of others close by, so that the sum 
of the ripples of the local adjustments constitutes or realizes P. 
(Some processes of such rippling local adjustments don’t come to 



22 


State-of-Nature Theory 


an equilibrium pattern, not even a moving one.) There are dif- 
ferent ways an equilibrium process can help maintain a pattern, 
and there also might be a filter that eliminates deviations from the 
pattern that are too great to be brought back by the internal 
equilibrating mechanisms. Perhaps the most elegant form of ex- 
planation of this sort involves two equilibrium processes, each in- 
ternally maintaining its pattern in the face of small deviations, and 
each being a filter to eliminate the large deviations occurring in 
the other. 

We might note in passing that the notion of filtering processes 
enables us to understand one way in which the position in the phi- 
losophy of the social sciences known as methodological individ- 
ualism might go wrong. If there is a filter that filters out (de- 
stroys) all non-P Q’s, then the explanation of why all Q’s are P’s 
(fit the pattern P) will refer to this filter. For each particular Q, 
there may be a particular explanation of why it is P, how it came 
to be P, what maintains it as P. But the explanation of why all Q’s 
are P will not be the conjunction of these individual explanations, 
even though these are all the Q’s there are, for that is part of what 
is to be explained. The explanation will refer to the filter. To 
make this clear, we might imagine that we have no explanation of 
why the individual Q’s are P’s. It just is an ultimate statistical law 
(so far as we can tell at any rate) that some Q’s are P; we even 
might be unable to discover any stable statistical regularity at all. 
In this case we would know why all Q’s are P’s (and know there 
are Q’s, and perhaps even know why there are Q’s) without know- 
ing of any Q, why it is P! The methodological individualist po- 
sition requires that there be no basic (unreduced) social fil- 
tering processes. 


IS THE DOMINANT PROTECTIVE 
ASSOCIATION A STATE? 

Have we provided an invisible-hand explanation of the state? 
There are at least two ways in which the scheme of private protec- 
tive associations might be thought to differ from a minimal state, 
might fail to satisfy a minimal conception of a state: (i) it appears 



The State of Nature 


23 


to allow some people to enforce their own rights, and (2) it ap- 
pears not to protect all individuals within its domain. Writers in 
the tradition of Max Weber 14 treat having a monopoly on the 
use of force in a geographical area, a monopoly incompatible with 
private enforcement of rights, as crucial to the existence of a state. 
As Marshall Cohen points out in an unpublished essay, a state may 
exist without actually monopolizing the use of force it has not au- 
thorized others to use; within the boundaries of a state there may 
exist groups such as the Mafia, the KKK, White Citizens Coun- 
cils, striking unionists, and Weathermen that also use force. 
Claiming such a monopoly is not sufficient (if you claimed it you 
would not become the state), nor is being its sole claimant a neces- 
sary condition. Nor need everyone grant the legitimacy of the 
state’s claim to such monopoly, either because as pacifists they 
think no one has the right to use force, or because as revolu- 
tionaries they believe that a given state lacks this right, or be- 
cause they believe they are entitled to join in and help out no mat- 
ter what the state says. Formulating sufficient conditions for the 
existence of the state thus turns out to be a difficult and messy 
task. 15 

For our purposes here we need focus only upon a necessary con- 
dition that the system of private protective agencies (or any com- 
ponent agency within it) apparently does not satisfy. A state 
claims a monopoly on deciding who may use force when; it says 
that only it may decide who may use force and under what condi- 
tions; it reserves to itself the sole right to pass on the legitimacy 
and permissibility of any use of force within its boundaries; fur- 
thermore it claims the right to punish all those who violate its 
claimed monopoly. The monopoly may be violated in two ways: 
(1) a person may use force though unauthorized by the state to do 
so, or (2) though not themselves using force a group or person may 
set themselves up as an alternative authority (and perhaps even 
claim to be the sole legitimate one) to decide when and by whom 
the use of force is proper and legitimate. It is unclear whether a 
state must claim the right to punish the second sort of violator, 
and doubtful whether any state actually would refrain from pun- 
ishing a significant group of them within its boundaries. I glide 
over the issue of what sort of “may,” “legitimacy,” and “permis- 
sibility” is in question. Moral permissibility isn’t a matter of 



24 


State-of-Nature Theory 


decision, and the state need not be so egomaniacal as to claim the 
sole right to decide moral questions. To speak of legal permis- 
sibility would require, to avoid circularity, that an account of a 
legal system be offered that doesn’t use the notion of the state. 

We may proceed, for our purposes, by saying that a necessary 
condition for the existence of a state is that it (some person or or- 
ganization) announce that, to the best of its ability (taking into ac- 
count costs of doing so, the feasibility, the more important alter- 
native things it should be doing, and so forth), it will punish 
everyone whom it discovers to have used force without its express 
permission. (This permission may be a particular permission or 
may be granted via some general regulation or authorization.) This 
still won’t quite do: the state may reserve the right to forgive 
someone, ex post facto; in order to punish they may have not only 
to discover the “unauthorized” use of force but also prove via a cer- 
tain specified procedure of proof that it occurred, and so forth. But 
it enables us to proceed. The protective agencies, it seems, do not 
make such an announcement, either individually or collectively. 
Nor does it seem morally legitimate for them to do so. So the system of 
private protective associations, if they perform no morally illegiti- 
mate action, appears to lack any monopoly element and so appears 
not to constitute or contain a state. To examine the question of the 
monopoly element, we shall have to consider the situation of some 
group of persons (or some one person) living within a system of 
private protective agencies who refuse to join any protective soci- 
ety; who insist on judging for themselves whether their rights 
have been violated, and (if they so judge) on personally enforcing 
their rights by punishing and/or exacting compensation from those 
who infringed them. 

The second reason for thinking the system described is not a 
state is that, under it (apart from spillover effects) only those pay- 
ing for protection get protected; furthermore, differing degrees of 
protection may be purchased. External economies again to the 
side, no one pays for the protection of others except as they choose 
to; no one is required to purchase or contribute to the purchasing 
of protection for others. Protection and enforcement of people’s 
rights is treated as an economic good to be provided by the mar- 
ket, as are other important goods such as food and clothing. How- 
ever, under the usual conception of a state, each person living 



The State of Nature 


25 


within (or even sometimes traveling outside) its geographical 
boundaries gets (or at least, is entitled to get) its protection. 
Unless some private party donated sufficient funds to cover the 
costs of such protection (to pay for detectives, police to bring 
criminals into custody, courts, and prisons), or unless the state 
found some service it could charge for that would cover these 
costs,* one would expect that a state which offered protection so 
broadly would be redistributive. It would be a state in which some 
persons paid more so that others could be protected. And indeed 
the most minimal state seriously discussed by the mainstream of 
political theorists, the night-watchman state of classical liberal 
theory, appears to be redistributive in this fashion. Yet how can a 
protection agency, a business, charge some to provide its product 
to others? 16 (We ignore things like some partially paying for 
others because it is too costly for the agency to refine its classifica- 
tion of, and charges to, customers to mirror the costs of the ser- 
vices to them.) 

Thus it appears that the dominant protective agency in a terri- 
tory not only lacks the requisite monopoly over the use of force, 
but also fails to provide protection for all in its territory; and so 
the dominant agency appears to fall short of being a state. But 
these appearances are deceptive. 


* I have heard it suggested that the state could finance itself by running a 
lottery. But since it would have no right to forbid private entrepreneurs from 
doing the same, why think the state will have any more success in attracting 
customers in this than in any other competitive business? 



CHAPTER 

3 

Moral Constraints 
and the State 


THE MINIMAL STATE AND THE 


T 

Xhi 


ULTRAMINIMAL STATE 


JL.HE night-watchman state of classical liberal theory, lim- 
ited to the functions of protecting all its citizens against violence, 
theft, and fraud, and to the enforcement of contracts, and so on, 
appears to be redistributive . 1 We can imagine at least one social 
arrangement intermediate between the scheme of private protec- 
tive associations and the night-watchman state. Since the night- 
watchman state is often called a minimal state, we shall call this 


other arrangement the ultraminimal state. An ultraminimal state 
maintains a monopoly over all use of force except that necessary in 
immediate self-defense, and so excludes private (or agency) retalia- 
tion for wrong and exaction of compensation; but it provides pro- 
tection and enforcement services only to those who purchase its 
protection and enforcement policies. People who don’t buy a pro- 
tection contract from the monopoly don’t get protected. The mini- 
mal (night-watchman) state is equivalent to the ultraminimal state 
conjoined with a (clearly redistributive) Friedmanesque voucher 


26 



Moral Constraints and the State 


27 


plan, financed from tax revenues.* Under this plan all people, or 
some (for example, those in need), are given tax-funded vouchers 
that can be used only for their purchase of a protection policy from 
the ultraminimal state. 

Since the night-watchman state appears redistributive to the ex- 
tent that it compels some people to pay for the protection of 
others, its proponents must explain why this redistributive func- 
tion of the state is unique. If some redistribution is legitimate in 
order to protect everyone, why is redistribution not legitimate for 
other attractive and desirable purposes as well? What rationale 
specifically selects protective services as the sole subject of legiti- 
mate redistributive activities? A rationale, once found, may show 
that this provision of protective services is not redistributive. More 
precisely, the term “redistributive” applies to types of reasons for 
an arrangement, rather than to an arrangement itself. We might 
elliptically call an arrangement “redistributive” if its major (only 
possible) supporting reasons are themselves redistributive. (“Pater- 
nalistic” functions similarly.) Finding compelling nonredistribu- 
tive reasons would cause us to drop this label. Whether we say an 
institution that takes money from some and gives it to others is re- 
distributive will depend upon why we think it does so. Returning 
stolen money or compensating for violations of rights are not redis- 
tributive reasons. I have spoken until now of the night-watchman 
state’s appearing to be redistributive, to leave open the possibility 
that nonredistributive types of reasons might be found to justify 
the provision of protective services for some by others (I explore 
some such reasons in Chapters 4 and 5 of Part I.) 

A proponent of the ultraminimal state may seem to occupy an 
inconsistent position, even though he avoids the question of what 
makes protection uniquely suitable for redistributive provision. 
Greatly concerned to protect rights against violation, he makes 
this the sole legitimate function of the state; and he protests that 
all other functions are illegitimate because they themselves involve 
the violation of rights. Since he accords paramount place to the 


* Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago 
Press, 1962), chap. 6. Friedman’s school vouchers, of course, allow a choice 
about who is to supply the product, and so differ from the protection vouchers 
imagined here. 



28 


State-of -Nature Theory 


protection and nonviolation of rights, how can he support the ul- 
traminimal state, which would seem to leave some persons’ rights 
unprotected or illprotected? How can he support this in the name of 
the nonviolation of rights? 


MORAL CONSTRAINTS AND MORAL GOALS 

This question assumes that a moral concern can function only as 
a moral goal, as an end state for some activities to achieve as their 
result. It may, indeed, seem to be a necessary truth that “right,” 
“ought,” “should,” and so on, are to be explained in terms of 
what is, or is intended to be, productive of the greatest good, with 
all goals built into the good . 2 Thus it is often thought that what 
is wrong with utilitarianism (which is of this form) is its too nar- 
row conception of good. Utilitarianism doesn’t, it is said, properly 
take rights and their nonviolation into account; it instead leaves 
them a derivative status. Many of the counterexample cases to util- 
itarianism fit under this objection, for example, punishing an in- 
nocent man to save a neighborhood from a vengeful rampage. 
But a theory may include in a primary way the nonviolation of 
rights, yet include it in the wrong place and the wrong manner. For 
suppose some condition about minimizing the total (weighted) 
amount of violations of rights is built into the desirable end state 
to be achieved. We then would have something like a “utilitar- 
ianism of rights”; violations of rights (to be minimized) merely 
would replace the total happiness as the relevant end state in the 
utilitarian structure. (Note that we do not hold the nonviolation of 
our rights as our sole greatest good or even rank it first lex- 
icographically to exclude trade-offs, if there is some desirable so- 
ciety we would choose to inhabit even though in it some rights 
of ours sometimes are violated, rather than move to a desert is- 
land where we could survive alone.) This still would require us to 
violate someone’s rights when doing so minimizes the total 
(weighted) amount of the violation of rights in the society. For ex- 
ample, violating someone’s rights might deflect others from their 
intended action of gravely violating rights, or might remove their 
motive for doing so, or might divert their attention, and so on. A 



Moral Constraints and the State 


29 


mob rampaging through a part of town killing and burning will 
violate the rights of those living there. Therefore, someone might 
try to justify his punishing another he knows to be innocent of a 
crime that enraged a mob, on the grounds that punishing this in- 
nocent person would help to avoid even greater violations of rights 
by others, and so would lead to a minimum weighted score for 
rights violations in the society. 

In contrast to incorporating rights into the end state to be 
achieved, one might place them as side constraints upon the ac- 
tions to be done: don’t violate constraints C. The rights of others 
determine the constraints upon your actions. (A goal-directed view 
with constraints added would be: among those acts available to 
you that don’t violate constraints C, act so as to maximize goal G. 
Here, the rights of others would constrain your goal -directed be- 
havior. I do not mean to imply that the correct moral view in- 
cludes mandatory goals that must be pursued, even within the 
constraints.) This view differs from one that tries to build the side 
constraints C into the goal G. The side-constraint view forbids you 
to violate these moral constraints in the pursuit of your goals; 
whereas the view whose objective is to minimize the violation of 
these rights allows you to violate the rights (the constraints) in 
order to lessen their total violation in the society.* 


* Unfortunately, too few models of the structure of moral views have been 
specified heretofore, though there are surely other interesting structures. Hence 
an argument for a side-constraint structure that consists largely in arguing 
against an end-state maximization structure is inconclusive, for these alterna- 
tives are not exhaustive. (On page 46 we describe a view which fits neither struc- 
ture happily.) An array of structures must be precisely formulated and inves- 
tigated; perhaps some novel structure then will seem most appropriate. 

The issue of whether a side-constraint view can be put in the form of the 
goal-without-side-constraint view is a tricky one. One might think, for ex- 
ample, that each person could distinguish in his goal between his violating 
rights and someone else’s doing it. Give the former infinite (negative) weight in 
his goal, and no amount of stopping others from violating rights can outweigh 
his violating someone's rights. In addition to a component of a goal receiving 
infinite weight, indexical expressions also appear, for example, “my doing some- 
thing.” A careful statement delimiting “constraint views” would exclude these 
gimmicky ways of transforming side constraints into the form of an end-state 
view as sufficient to constitute a view as end state. Mathematical methods of 
transforming a constrained minimization problem into a sequence of uncon- 
strained minimizations of an auxiliary function are presented in Anthony Fiacco 
and Garth McCormick, Nonlinear Programming: Sequential Unconstrained Minimi- 



30 


State-of -Nature Theory 


The claim that the proponent of the ultraminimal state is incon- 
sistent, we now can see, assumes that he is a “utilitarian of 
rights.” It assumes that his goal is, for example, to minimize the 
weighted amount of the violation of rights in the society, and that 
he should pursue this goal even through means that themselves vi- 
olate people’s rights. Instead, he may place the nonviolation of 
rights as a constraint upon action, rather than (or in addition to) 
building it into the end state to be realized. The position held by 
this proponent of the ultraminimal state will be a consistent one if 
his conception of rights holds that your being forced to contribute 
to another’s welfare violates your rights, whereas someone else’s 
not providing you with things you need greatly, including things 
essential to the protection of your rights, does not itself violate 
your rights, even though it avoids making it more difficult for 
someone else to violate them. (That conception will be consistent 
provided it does not construe the monopoly element of the ul- 
traminimal state as itself a violation of rights.) That it is a consis- 
tent position does not, of course, show that it is an acceptable one. 


WHY SIDE CONSTRAINTS? 

Isn’t it irrational to accept a side constraint C, rather than a view 
that directs minimizing the violations of CP (The latter view treats 
C as a condition rather than a constraint.) If nonviolation of C is so 
important, shouldn’t that be the goal? How can a concern for the 
nonviolation of C lead to the refusal to violate C even when this 
would prevent other more extensive violations of C? What is the 
rationale for placing the nonviolation of rights as a side constraint 
upon action instead of including it solely as a goal of one’s actions? 

Side constraints upon action reflect the underlying Kantian 


zation Techniques (New York: Wiley, 1968). The book is interesting both for its 
methods and for their limitations in illuminating our area of concern; note the 
way in which the penalty functions include the constraints, the variation in 
weights of penalty functions (sec. 7.1), and so on. 

The question of whether these side constraints are absolute, or whether they 
may be violated in order to avoid catastrophic moral horror, and if the latter, 
what the resulting structure might look like, is one I hope largely to avoid. 




Moral Constraints and the State 


3i 


principle that individuals are ends and not merely means; they 
may not be sacrificed or used for the achieving of other ends 
without their consent. Individuals are inviolable. More should be 
said to illuminate this talk of ends and means. Consider a prime 
example of a means, a tool. There is no side constraint on how we 
may use a tool, other than the moral constraints on how we may 
use it upon others. There are procedures to be followed to preserve 
it for future use (“don’t leave it out in the rain”), and there are 
more and less efficient ways of using it. But there is no limit on 
what we may do to it to best achieve our goals. Now imagine that 
there was an overrideable constraint C on some tool’s use. For ex- 
ample, the tool might have been lent to you only on the condition 
that C not be violated unless the gain from doing so was above a 
certain specified amount, or unless it was necessary to achieve a 
certain specified goal. Here the object is not completely your tool, 
for use according to your wish or whim. But it is a tool neverthe- 
less, even with regard to the overrideable constraint. If we add 
constraints on its use that may not be overridden, then the object 
may not be used as a tool in those ways. In those respects, it is not a 
tool at all. Can one add enough constraints so that an object can- 
not be used as a tool at all, in any respect? 

Can behavior toward a person be constrained so that he is not to 
be used for any end except as he chooses? This is an impossibly 
stringent condition if it requires everyone who provides us with a 
good to approve positively of every use to which we wish to put it. 
Even the requirement that he merely should not object to any use 
we plan would seriously curtail bilateral exchange, not to mention 
sequences of such exchanges. It is sufficient that the other party 
stands to gain enough from the exchange so that he is willing to 
go through with it, even though he objects to one or more of the 
uses to which you shall put the good. Under such conditions, the 
other party is not being used solely as a means, in that respect. 
Another party, however, who would not choose to interact with 
you if he knew of the uses to which you intend to put his actions or 
good, is being used as a means, even if he receives enough to 
choose (in his ignorance) to interact with you. (“All along, you 
were just using me” can be said by someone who chose to interact 
only because he was ignorant of another’s goals and of the uses to 
which he himself would be put.) Is it morally incumbent upon 



32 


State-of-Nature Theory 


someone to reveal his intended uses of an interaction if he has good 
reason to believe the other would refuse to interact if he knew? Is 
he using the other person, if he does not reveal this? And what of 
the cases where the other does not choose to be of use at all? In 
getting pleasure from seeing an attractive person go by, does one 
use the other solely as a means? 3 Does someone so use an object 
of sexual fantasies? These and related questions raise very interest- 
ing issues for moral philosophy; but not, I think, for political 
philosophy. 

Political philosophy is concerned only with certain ways that 
persons may not use others; primarily, physically aggressing 
against them. A specific side constraint upon action toward others 
expresses the fact that others may not be used in the specific ways 
the side constraint excludes. Side constraints express the in- 
violability of others, in the ways they specify. These modes of in- 
violability are expressed by the following injunction: “Don’t use 
people in specified ways.” An end-state view, on the other hand, 
would express the view that people are ends and not merely means 
(if it chooses to express this view at all), by a different injunction: 
“Minimize the use in specified ways of persons as means.” Follow- 
ing this precept itself may involve using someone as a means in 
one of the ways specified. Had Kant held this view, he would have 
given the second formula of the categorical imperative as, “So act 
as to minimize the use of humanity simply as a means,” rather 
than the one he actually used: “Act in such a way that you always 
treat humanity, whether in your own person or in the person of 
any other, never simply as a means, but always at the same time as 
an end.” 4 

Side constraints express the inviolability of other persons. But 
why may not one violate persons for the greater social good? Indi- 
vidually, we each sometimes choose to undergo some pain or sacri- 
fice for a greater benefit or to avoid a greater harm: we go to the 
dentist to avoid worse suffering later; we do some unpleasant work 
for its results; some persons diet to improve their health or looks; 
some save money to support themselves when they are older. In 
each case, some cost is borne for the sake of the greater overall 
good. Why not, similarly, hold that some persons have to bear 
some costs that benefit other persons more, for the sake of the 
overall social good? But there is no social entity with a good that 



Moral Constraints and the State 


33 


undergoes some sacrifice for its own good. There are only individ- 
ual people, different individual people, with their own individual 
lives. Using one of these people for the benefit of others, uses him 
and benefits the others. Nothing more. What happens is that 
something is done to him for the sake of others. Talk of an overall 
social good covers this up. (Intentionally?) To use a person in this 
way does not sufficiently respect and take account of the fact that 
he is a separate person , 5 that his is the only life he has. He does 
not get some overbalancing good from his sacrifice, and no one is 
entitled to force this upon him — least of all a state or government 
that claims his allegiance (as other individuals do not) and that 
therefore scrupulously must be neutral between its citizens. 


LIBERTARIAN CONSTRAINTS 

The moral side constraints upon what we may do, I claim, reflect 
the fact of our separate existences. They reflect the fact that no 
moral balancing act can take place among us; there is no moral 
outweighing of one of our lives by others so as to lead to a greater 
overall social good. There is no justified sacrifice of some of us for 
others. This root idea, namely, that there are different individuals 
with separate lives and so no one may be sacrificed for others, un- 
derlies the existence of moral side constraints, but it also, I be- 
lieve, leads to a libertarian side constraint that prohibits aggres- 
sion against another. 

The stronger the force of an end-state maximizing view, the 
more powerful must be the root idea capable of resisting it that 
underlies the existence of moral side constraints. Hence the more 
seriously must be taken the existence of distinct individuals who 
are not resources for others. An underlying notion sufficiently 
powerful to support moral side constraints against the powerful 
intuitive force of the end-state maximizing view will suffice to 
derive a libertarian constraint on aggression against another. Any- 
one who rejects that particular side constraint has three alterna- 
tives: (i) he must reject all side constraints; (2) he must produce a 
different explanation of why there are moral side constraints rather 
than simply a goal-directed maximizing structure, an explanation 



34 


State-of -Nature Theory 


that doesn’t itself entail the libertarian side constraint; or (3) he 
must accept the strongly put root idea about the separateness of 
individuals and yet claim that initiating aggression against another 
is compatible with this root idea. Thus we have a promising 
sketch of an argument from moral form to moral content: the form 
of morality includes F (moral side constraints); the best explana- 
tion 6 of morality’s being F is p (a strong statement of the dis- 
tinctness of individuals); and from p follows a particular moral 
content, namely, the libertarian constraint. The particular moral 
content gotten by this argument, which focuses upon the fact that 
there are distinct individuals each with his own life to lead, will 
not be the full libertarian constraint. It will prohibit sacrificing 
one person to benefit another. Further steps would be needed to 
reach a prohibition on paternalistic aggression: using or threaten- 
ing force for the benefit of the person against whom it is wielded. 
For this, one must focus upon the fact that there are distinct indi- 
viduals, each with his own life to lead. 

A nonaggression principle is often held to be an appropriate 
principle to govern relations among nations. What difference is 
there supposed to be between sovereign individuals and sovereign 
nations that makes aggression permissible among individuals? 
Why may individuals jointly, through their government, do to 
someone what no nation may do to another? If anything, there is a 
stronger case for nonaggression among individuals; unlike nations, 
they do not contain as parts individuals that others legitimately 
might intervene to protect or defend. 

I shall not pursue here the details of a principle that prohibits 
physical aggression, except to note that it does not prohibit the 
use of force in defense against another party who is a threat, even 
though he is innocent and deserves no retribution. An innocent 
threat is someone who innocently is a causal agent in a process such 
that he would be an aggressor had he chosen to become such an 
agent. If someone picks up a third party and throws him at you 
down at the bottom of a deep well, the third party is innocent and 
a threat; had he chosen to launch himself at you in that trajectory 
he would be an aggressor. Even though the falling person would 
survive his fall onto you, may you use your ray gun to disintegrate 
the falling body before it crushes and kills you? Libertarian prohi- 
bitions are usually formulated so as to forbid using violence on in- 



Moral Constraints and the State 


35 


nocent persons. But innocent threats, I think, are another matter 
to which different principles must apply . 7 Thus, a full theory in 
this area also must formulate the different constraints on response 
to innocent threats. Further complications concern innocent shields 
of threats, those innocent persons who themselves are nonthreats 
but who are so situated that they will be damaged by the only 
means available for stopping the threat. Innocent persons strapped 
onto the front of the tanks of aggressors so that the tanks cannot 
be hit without also hitting them are innocent shields of threats. 
(Some uses of force on people to get at an aggressor do not act 
upon innocent shields of threats; for example, an aggressor’s in- 
nocent child who is tortured in order to get the aggressor to stop 
wasn’t shielding the parent.) May one knowingly injure innocent 
shields? If one may attack an aggressor and injure an innocent 
shield, may the innocent shield fight back in self-defense (suppos- 
ing that he cannot move against or fight the aggressor)? Do we get 
two persons battling each other in self-defense? Similarly, if you 
use force against an innocent threat to you, do you thereby become 
an innocent threat to him, so that he may now justifiably use addi- 
tional force against you (supposing that he can do this, yet cannot 
prevent his original threateningness)? I tiptoe around these incred- 
ibly difficult issues here, merely noting that a view that says it 
makes nonaggression central must resolve them explicitly at some 
point. 


CONSTRAINTS AND ANIMALS 

We can illuminate the status and implications of moral side con- 
straints by considering living beings for whom such stringent side 
constraints (or any at all) usually are not considered appropriate: 
namely, nonhuman animals. Are there any limits to what we may 
do to animals? Have animals the moral status of mere objects? Do 
some purposes fail to entitle us to impose great costs on animals? 
What entitles us to use them at all? 

Animals count for something. Some higher animals, at least, 
ought to be given some weight in people’s deliberations about 
what to do. It is difficult to prove this. (It is also difficult to prove 



36 


State-of-Nature Theory 


that people count for something!) We first shall adduce particular 
examples, and then arguments. If you felt like snapping your 
fingers, perhaps to the beat of some music, and you knew that by 
some strange causal connection your snapping your fingers would 
cause 10,000 contented, unowned cows to die after great pain and 
suffering, or even painlessly and instantaneously, would it be per- 
fectly all right to snap your fingers? Is there some reason why it 
would be morally wrong to do so? 

Some say people should not do so because such acts brutalize 
them and make them more likely to take the lives of persons, solely 
for pleasure. These acts that are morally unobjectionable in them- 
selves, they say, have an undesirable moral spillover. (Things then 
would be different if there were no possibility of such spillover — 
for example, for the person who knows himself to be the last per- 
son on earth.) But why should there be such a spillover? If it is, in 
itself, perfectly all right to do anything at all to animals for any 
reason whatsoever, then provided a person realizes the clear line 
between animals and persons and keeps it in mind as he acts, why 
should killing animals tend to brutalize him and make him more 
likely to harm or kill persons? Do butchers commit more murders? 
(Than other persons who have knives around?) If I enjoy hitting a 
baseball squarely with a bat, does this significantly increase the 
danger of my doing the same to someone’s head? Am I not capable 
of understanding that people differ from baseballs, and doesn’t this 
understanding stop the spillover? Why should things be different 
in the case of animals? To be sure, it is an empirical question 
whether spillover does take place or not; but there is a puzzle as to 
why it should, at least among readers of this essay, sophisticated 
people who are capable of drawing distinctions and differentially 
acting upon them. 

If some animals count for something, which animals count, how 
much do they count, and how can this be determined? Suppose (as 
I believe the evidence supports) that eating animals is not necessary 
for health and is not less expensive than alternate equally healthy 
diets available to people in the United States. The gain, then, 
from the eating of animals is pleasures of the palate, gustatory 
delights, varied tastes. I would not claim that these are not truly 
pleasant, delightful, and interesting. The question is: do they, or 
rather does the marginal addition in them gained by eating ani- 



Moral Constraints and the State 


37 


mals rather than only nonanimals, outweigh the moral weight to be 
given to animals’ lives and pain? Given that animals are to count 
for something, is the extra gain obtained by eating them rather than 
nonanimal products greater than the moral cost? How might these 
questions be decided? 

We might try looking at comparable cases, extending whatever 
judgments we make on those cases to the one before us. For ex- 
ample, we might look at the case of hunting, where I assume that 
it’s not all right to hunt and kill animals merely for the fun of it. 
Is hunting a special case, because its object and what provides the 
fun is the chasing and maiming and death of animals? Suppose 
then that I enjoy swinging a baseball bat. It happens that in front 
of the only place to swing it stands a cow. Swinging the bat unfor- 
tunately would involve smashing the cow’s head. But I wouldn’t 
get fun from doing that; the pleasure comes from exercising my 
muscles, swinging well, and so on. It’s unfortunate that as a side 
effect (not a means) of my doing this, the animal’s skull gets 
smashed. To be sure, I could forego swinging the bat, and instead 
bend down and touch my toes or do some other exercise. But this 
wouldn’t be as enjoyable as swinging the bat; I won’t get as much 
fun, pleasure, or delight out of it. So the question is: would it be 
all right for me to swing the bat in order to get the extra pleasure 
of swinging it as compared to the best available alternative activity 
that does not involve harming the animal? Suppose that it is not 
merely a question of foregoing today’s special pleasures of bat 
swinging; suppose that each day the same situation arises with a 
different animal. Is there some principle that would allow killing 
and eating animals for the additional pleasure this brings, yet 
would not allow swinging the bat for the extra pleasure it brings? 
What could that principle be like? (Is this a better parallel to eat- 
ing meat? The animal is killed to get a bone out of which to make 
the best sort of bat to use; bats made out of other material don’t 
give quite the same pleasure. Is it all right to kill the animal to 
obtain the extra pleasure that using a bat made out of its bone 
would bring? Would it be morally more permissible if you could 
hire someone to do the killing for you?) 

Such examples and questions might help someone to see what 
sore of line he wishes to draw, what sort of position he wishes to 
take. They face, however, the usual limitations of consistency 



3 « 


State-of-Nature Theory 


arguments; they do not say, once a conflict is shown, which view 
to change. After failing to devise a principle to distinguish swing- 
ing the bat from killing and eating an animal, you might decide 
that it’s really all right, after all, to swing the bat. Furthermore, 
such appeal to similar cases does not greatly help us to assign 
precise moral weight to different sorts of animals. (We further 
discuss the difficulties in forcing a moral conclusion by appeal to 
examples in Chapter 9.) 

My purpose here in presenting these examples is to pursue the 
notion of moral side constraints, not the issue of eating animals. 
Though I should say that in my view the extra benefits Americans 
today can gain from eating animals do not justify doing it. So we 
shouldn’t. One ubiquitous argument, not unconnected with side 
constraints, deserves mention: because people eat animals, they 
raise more than otherwise would exist without this practice. To exist 
for a while is better than never to exist at all. So (the argument 
concludes) the animals are better off because we have the prac- 
tice of eating them. Though this is not our object, fortunately it 
turns out that we really, all along, benefit them! (If tastes changed 
and people no longer found it enjoyable to eat animals, should 
those concerned with the welfare of animals steel themselves to 
an unpleasant task and continue eating them?) I trust I shall not 
be misunderstood as saying that animals are to be given the same 
moral weight as people if I note that the parallel argument about 
people would not look very convincing. We can imagine that pop- 
ulation problems lead every couple or group to limit their children 
to some number fixed in advance. A given couple, having reached 
the number, proposes to have an additional child and dispose of it 
at the age of three (or twenty-three) by sacrificing it or using it for 
some gastronomic purpose. In justification, they note that the 
child will not exist at all if this is not allowed; and surely it is bet- 
ter for it to exist for some number of years. However, once a per- 
son exists, not everything compatible with his overall existence 
being a net plus can be done, even by those who created him. An 
existing person has claims, even against those whose purpose in 
creating him was to violate those claims. It would be worthwhile 
to pursue moral objections to a system that permits parents to do 
anything whose permissibility is necessary for their choosing to 
have the child, that also leaves the child better off than if it hadn’t 



Moral Constraints and the State 


39 


been born . 8 (Some will think the only objections arise from dif- 
ficulties in accurately administering the permission.) Once they 
exist, animals too may have claims to certain treatment. These 
claims may well carry less weight than those of people. But the 
fact that some animals were brought into existence only because 
someone wanted to do something that would violate one of these 
claims does not show that the claim doesn’t exist at all. 

Consider the following (too minimal) position about the treat- 
ment of animals. So that we can easily refer to it, let us label this 
position “utilitarianism for animals, Kantianism for people.” It 
says: (i) maximize the total happiness of all living beings; 
(2) place stringent side constraints on what one may do to human 
beings. Human beings may not be used or sacrificed for the bene- 
fit of others; animals may be used or sacrificed for the benefit of 
other people or animals only if those benefits are greater than the 
loss inflicted. (This inexact statement of the utilitarian position is 
close enough for our purposes, and it can be handled more easily 
in discussion.) One may proceed only if the total utilitarian benefit 
is greater than the utilitarian loss inflicted on the animals. This 
utilitarian view counts animals as much as normal utilitarianism 
does persons. Following Orwell, we might summarize this view 
as: all animals are equal but some are more equal than others. (None 
may be sacrificed except for a greater total benefit; but persons 
may not be sacrificed at all, or only under far more stringent con- 
ditions, and never for the benefit of nonhuman animals. I mean (1) 
above merely to exclude sacrifices which do not meet the utilitar- 
ian standard, not to mandate a utilitarian goal. We shall call this 
position negative utilitarianism.) 

We can now direct arguments for animals counting for some- 
thing to holders of different views. To the “Kantian” moral philos- 
opher who imposes stringent side constraints on what may be done 
to a person, we can say: 

You hold utilitarianism inadequate because it allows an individual to be 
sacrificed to and for another, and so forth, thereby neglecting the strin- 
gent limitations on how one legitimately may behave toward persons. 
But could there be anything morally intermediate between persons and 
stones, something without such stringent limitations on its treatment, 
yet not to be treated merely as an object? One would expect that by sub- 
tracting or diminishing some features of persons, we would get this in- 



40 


State-of-Nature Theory 


termediate sort of being. (Or perhaps beings of intermediate moral 
status are gotten by subtracting some of our characteristics and adding 
others very different from ours.) 

Plausibly, animals are the intermediate beings, and utilitarianism is 
the intermediate position. We may come at the question from a slightly 
different angle. Utilitarianism assumes both that happiness is all that 
matters morally and that all beings are interchangeable. This conjunc- 
tion does not hold true of persons. But isn’t (negative) utilitarianism 
true of whatever beings the conjunction does hold for, and- doesn’t it 
hold for animals? 

To the utilitarian we may say: 

If only the experiences of pleasure, pain, happiness, and so on (and the 
capacity for these experiences) are morally relevant, then animals must 
be counted in moral calculations to the extent they do have these capaci- 
ties and experiences. Form a matrix where the rows represent alternative 
policies or actions, the columns represent different individual organisms, 
and each entry represents the utility (net pleasure, happiness) the policy 
will lead to for the organism. The utilitarian theory evaluates each policy 
by the sum of the entries in its row and directs us to perform an action 
or adopt a policy whose sum is maximal. Each column is weighted 
equally and counted once, be it that of a person or a nonhuman animal. 
Though the structure of the view treats them equally, animals might be 
less important in the decisions because of facts about them. If animals 
have less capacity for pleasure, pain, happiness than humans do, the ma- 
trix entries in animals’ columns will be lower generally than those in 
people’s columns. In this case, they will be less important factors in the 
ultimate decisions to be made. 

A utilitarian would find it difficult to deny animals this kind of 
equal consideration. On what grounds could he consistently dis- 
tinguish persons’ happiness from that of animals, to count only the 
former? Even if experiences don’t get entered in the utility matrix 
unless they are above a certain threshold, surely some animal ex- 
periences are greater than some people’s experiences that the utili- 
tarian wishes to count. (Compare an animal’s being burned alive 
unanesthetized with a person’s mild annoyance.) Bentham, we 
may note, does count animals’ happiness equally in just the way we 
have explained . 9 

Under “utilitarianism for animals, Kantianism for people,” ani- 
mals will be used for the gain of other animals and persons, but 
persons will never be used (harmed, sacrificed) against their will, 
for the gain of animals. Nothing may be inflicted upon persons for 



Moral Constraints and the State 


4i 


the sake of animals. (Including penalties for violating laws against 
cruelty to animals?) Is this an acceptable consequence? Can’t one 
save 10,000 animals from excruciating suffering by inflicting some 
slight discomfort on a person who did not cause the animals’ suf- 
fering? One may feel the side constraint is not absolute when it is 
people who can be saved from excruciating suffering. So perhaps the 
side contraint also relaxes, though not as much, when animals’ 
suffering is at stake. The thoroughgoing utilitarian (for animals 
and for people, combined in one group) goes further and holds 
that, ceteris paribus, we may inflict some suffering on a person to 
avoid a (slightly) greater suffering of an animal. This permissive 
principle seems to me to be unacceptably strong, even when the 
purpose is to avoid greater suffering to a person! 

Utilitarian theory is embarrassed by the possibility of utility 
monsters who get enormously greater gains in utility from any sac- 
rifice of others than these others lose. For, unacceptably, the 
theory seems to require that we all be sacrificed in the monster’s 
maw, in order to increase total utility. Similarly if people are util- 
ity devourers with respect to animals, always getting greatly coun- 
terbalancing utility from each sacrifice of an animal, we may feel 
that “utilitarianism for animals, Kantianism for people,” in 
requiring (or allowing) that almost always animals be sacrificed, 
makes animals too subordinate to persons. 

Since it counts only the happiness and suffering of animals, 
would the utilitarian view hold it all right to kill animals pain- 
lessly? Would it be all right, on the utilitarian view, to kill people 
painlessly, in the night, provided one didn’t first announce it? 
Utilitarianism is notoriously inept with decisions where the number 
of persons is at issue. (In this area, it must be conceded, eptness is 
hard to come by.) Maximizing the total happiness requires con- 
tinuing to add persons so long as their net utility is positive and is 
sufficient to counterbalance the loss in utility their presence in the 
world causes others. Maximizing the average dtility allows a per- 
son to kill everyone else if that would make him ecstatic, and so 
happier than average. (Don’t say he shouldn’t because after his 
death the average would drop lower than if he didn’t kill all the 
others.) Is it all right to kill someone provided you immediately 
substitute another (by having a child or, in science- fiction fashion, 
by creating a full-grown person) who will be as happy as the rest 



42 


State-of -Nature Theory 


of the life of the person you killed? After all, there would be no 
net diminution in total utility, or even any change in its profile of 
distribution. Do we forbid murder only to prevent feelings of 
worry on the part of potential victims? (And how does a utilitarian 
explain what it is they’re worried about, and would he really base 
a policy on what he must hold to be an irrational fear?) Clearly, a 
utilitarian needs to supplement his view to handle such issues; 
perhaps he will find that the supplementary theory becomes the 
main one, relegating utilitarian considerations to a corner. 

But isn’t utilitarianism at least adequate for animals? I think 
not. But if not only the animals’ felt experiences are relevant, what 
else is? Here a tangle of questions arises. How much does an 
animal’s life have to be respected once it’s alive, and how can we 
decide this? Must one also introduce some notion of a nondegraded 
existence? Would it be all right to use genetic-engineering tech- 
niques to breed natural slaves who would be contented with their 
lots? Natural animal slaves? Was that the domestication of ani- 
mals? Even for animals, utilitarianism won’t do as the whole story, 
but the thicket of questions daunts us. 


THE EXPERIENCE MACHINE 

There are also substantial puzzles when we ask what matters other 
than how people’s experiences feel “from the inside.” Suppose there 
were an experience machine that would give you any experience 
you desired. Superduper neuropsychologists could stimulate your 
brain so that you would think and feel you were writing a great 
novel, or making a friend, or reading an interesting book. All the 
time you would be floating in a tank, with electrodes attached to 
your brain. Should you plug into this machine for life, prepro- 
gramming your life’s experiences? If you are worried about missing 
out on desirable experiences, we can suppose that business en- 
terprises have researched thoroughly the lives of many others. You 
can pick and choose from their large library or smorgasbord of 
such experiences, selecting your life’s experiences for, say, the next 
two years. After two years have passed, you will have ten minutes 
or ten hours out of the tank, to select the experiences of your next 



Moral Constraints and the State 


43 


two years. Of course, while in the tank you won’t know that 
you’re there; you’ll think it’s all actually happening. Others can 
also plug in to have the experiences they want, so there’s no need 
to stay unplugged to serve them. (Ignore problems such as who 
will service the machines if everyone plugs in.) Would you plug 
in? What else can matter to us, other than how our lives feel from the in- 
side? Nor should you refrain because of the few moments of 
distress between the moment you’ve decided and the moment 
you’re plugged. What’s a few moments of distress compared to a 
lifetime of bliss (if that’s what you choose), and why feel any 
distress at all if your decision is the best one? 

What does matter to us in addition to our experiences? First, 
we want to do certain things, and not just have the experience of 
doing them. In the case of certain experiences, it is only because 
first we want to do the actions that we want the experiences of 
doing them or thinking we’ve done them. (But why do we want to 
do the activities rather than merely to experience them?) A second 
reason for not plugging in is that we want to be a certain way, to 
be a certain sort of person. Someone floating in a tank is an inde- 
terminate blob. There is no answer to the question of what a per- 
son is like who has long been in the tank. Is he courageous, kind, 
intelligent, witty, loving? It’s not merely that it’s difficult to tell; 
there’s no way he is. Plugging into the machine is a kind of 
suicide. It will seem to some, trapped by a picture, that nothing 
about what we are like can matter except as it gets reflected in our 
experiences. But should it be surprising that what we are is impor- 
tant to us? Why should we be concerned only with how our time 
is filled, but not with what we are? 

Thirdly, plugging into an experience machine limits us to a 
man-made reality, to a world no deeper or more important than 
that which people can construct . 10 There is no actual contact with 
any deeper reality, though the experience of it can be simulated. 
Many persons desire to leave themselves open to such contact and 
to a plumbing of deeper significance.* This clarifies the intensity 


* Traditional religious views differ on the point of contact with a transcen- 
dent reality. Some say that contact yields eternal bliss or Nirvana, but they have 
not distinguished this sufficiently from merely a very long run on the experience 
machine. Others think it is intrinsically desirable to do the will of a higher 



44 


State-of -Nature Theory 


of the conflict over psychoactive drugs, which some view as mere 
local experience machines, and others view as avenues to a deeper 
reality; what some view as equivalent to surrender to the experi- 
ence machine, others view as following one of the reasons not to 
surrender! 

We learn that something matters to us in addition to experience 
by imagining an experience machine and then realizing that we 
would not use it. We can continue to imagine a sequence of 
machines each designed to fill lacks suggested for the earlier ma- 
chines. For example, since the experience machine doesn’t meet 
our desire to be a certain way, imagine a transformation machine 
which transforms us into whatever sort of person we’d like to be 
(compatible with our staying us). Surely one would not use the 
transformation machine to become as one would wish, and there- 
upon plug into the experience machine! * So something matters in 
addition to one’s experiences and what one is like. Nor is the 
reason merely that one’s experiences are unconnected with what 
one is like. For the experience machine might be limited to pro- 
vide only experiences possible to the sort of person plugged in. Is 
it that we want to make a difference in the world? Consider then the 
result machine, which produces in the world any result you would 
produce and injects your vector input into any joint activity. We 
shall not pursue here the fascinating details of these or other 
machines. What is most disturbing about them is their living of 
our lives for us. Is it misguided to search for particular additional 


being which created us all, though presumably no one would think this if we 
discovered we had been created as an object of amusement by some superpower- 
fill child from another galaxy or dimension. Still others imagine an eventual 
merging with a higher reality, leaving unclear its desirability, or where that 
merging leaves us. 

* Some wouldn’t use the transformation machine at all; it seems like cheat- 
ing. But the one-time use of the transformation machine would not remove all 
challenges; there would still be obstacles for the new us to overcome, a new pla- 
teau from which to strive even higher. And is this plateau any the less earned or 
deserved than that provided by genetic endowment and early childhood en- 
vironment? But if the transformation machine could be used indefinitely often, 
so that we could accomplish anything by pushing a button to transform our- 
selves into someone who could do it easily, there would remain no limits we 
need to strain against or try to transcend. Would there be anything left to do? 
Do some theological views place God outside of time because an omniscient 
omnipotent being couldn’t fill up his days? 




Moral Constraints and the State 


45 


functions beyond the competence of machines to do for us? Per- 
haps what we desire is to live (an active verb) ourselves, in contact 
with reality. (And this, machines cannot do for us.) Without 
elaborating on the implications of this, which I believe connect 
surprisingly with issues about free will and causal accounts of 
knowledge, we need merely note the intricacy of the question of 
what matters for people other then their experiences. Until one finds 
a satisfactory answer, and determines that this answer does not also 
apply to animals, one cannot reasonably claim that only the felt 
experiences of animals limit what we may do to them. 


UNDERDETERMINATION OF MORAL THEORY 

What about persons distinguishes them from animals, so that 
stringent constraints apply to how persons may be treated, yet not 
to how animals may be treated? 11 Could beings from another 
galaxy stand to us as it is usually thought we do to animals, and if 
so, would they be justified in treating us as means a la utilitar- 
ianism? Are organisms arranged on some ascending scale, so that 
any may be sacrificed or caused to suffer to achieve a greater total 
benefit for those not lower on the scale? * Such an elitist hierarchi- 
cal view would distinguish three moral statuses (forming an inter- 
val partition of the scale): 

Status 1: The being may not be sacrificed, harmed, and so on, for any 
other organism’s sake. 

Status 2: The being may be sacrificed, harmed, and so on, only for the 
sake of beings higher on the scale, but not for the sake of beings at the 
same level. 


* We pass over the difficulties about deciding where on the scale to place an 
organism, and about particular interspecies comparisons. How is it to be de- 
cided where on the scale a species goes? Is an organism, if defective, to be 
placed at its species level? Is it an anomaly that it might be impermissible to 
treat two currently identical organisms similarly (they might even be identical 
in future and past capacities as well), because one is a normal member of one 
species and the other is a subnormal member of a species higher on the scale? 
And the problems of intraspecies interpersonal comparisons pale hefore those of 
interspecies comparisons. 



4 6 


State-of-Nature Theory 


Status 3: The being may be sacrificed, harmed, and so on, for the sake 
of other beings at the same or higher levels on the scale. 

If animals occupy status 3 and we occupy status 1 , what occupies 
status 2 ? Perhaps we occupy status 2 ! Is it morally forbidden to use 
people as means for the benefit of others, or is it only forbidden to 
use them for the sake of other people, that is, for beings at the same 
level? * Do ordinary views include the possibility of more than 
one significant moral divide (like that between persons and ani- 
mals), and might one come on the other side of human beings? Some 
theological views hold that God is permitted to sacrifice people for 
his own purposes. We also might imagine people encountering 
beings from another planet who traverse in their childhood what- 
ever “stages” of moral development our developmental psycholo- 
gists can identify. These beings claim that they all continue on 
through fourteen further sequential stages, each being necessary to 
enter the next one. However, they cannot explain to us (primitive 
as we are) the content and modes of reasoning of these later stages. 
These beings claim that we may be sacrificed for their well-being, 
or at least in order to preserve their higher capacities. They say 
that they see the truth of this now that they are in their moral ma- 
turity, though they didn’t as children at what is our highest level 
of moral development. (A story like this, perhaps, reminds us that 
a sequence of developmental stages, each a precondition for the 
next, may after some point deteriorate rather than progress. It 
would be no recommendation of senility to point out that in order 
to reach it one must have passed first through other stages.) Do 

* Some would say that here we have a teleological view giving human beings 
infinite worth relative to other human beings. But a teleological theory that 
maximizes total value will not prohibit the sacrifice of some people for the sake 
of other people. Sacrificing some for others wouldn’t produce a net gain, but 
there wouldn’t be a net loss either. Since a teleological theory that gives each 
person’s life equal weight excludes only a lowering of total value (to require that 
each act produce a gain in total value would exclude neutral acts), it would allow 
the sacrifice of one person for another. Without gimmicky devices similar to 
those mentioned earlier, for example, using indexical expressions in the infi- 
nitely weighted goals, or giving some goals (representing the constraints) an in- 
finite weight of a higher order of infinity than others (even this won’t quite do, 
and the details are very messy), views embodying a status 2 do not seem to be 
representable as teleological. This illustrates our earlier remark that “teleologi- 
cal” and “side constraint” do not exhaust the possible structures for a moral 
view. 



Moral Constraints and the State 


47 


our moral views permit our sacrifice for the sake of these beings’ 
higher capacities, including their moral ones? This decision is not 
easily disentangled from the epistemological effects of contemplat- 
ing the existence of such moral authorities who differ from us, 
while we admit that, being fallible, we may be wrong. (A similar 
effect would obtain even if we happened not to know which view 
of the matter these other beings actually held.) 

Beings who occupy the intermediate status 2 will be sacri- 
ficeable, but not for the sake of beings at the same or lower levels. If 
they never encounter or know of or affect beings higher in the hi- 
erarchy, then they will occupy the highest level for every situation 
they actually encounter and deliberate over. It will be as if an 
absolute side constraint prohibits their being sacrificed for any pur- 
pose. Two very different moral theories, the elitist hierarchical 
theory placing people in status 2 and the absolute-side-constraint 
theory, yield exactly the same moral judgments for the situations 
people actually have faced and account equally well for (almost) all 
of the moral judgments we have made. (“Almost all,” because we 
make judgments about hypothetical situations, and these may 
include some involving “superbeings” from another planet.) This 
is not the philosopher’s vision of two alternative theories account- 
ing equally well for all of the possible data. Nor is it merely the 
claim that by various gimmicks a side-constraint view can be put 
into the form of a maximizing view. Rather, the two alternative 
theories account for all of the actual data, the data about cases we 
have encountered heretofore; yet they diverge significantly for cer- 
tain other hypothetical situations. 

It would not be surprising if we found it difficult to decide 
which theory to believe. For we have not been obliged to think 
about these situations; they are not the situations that shaped our 
views. Yet the issues do not concern merely whether superior 
beings may sacrifice us for their sakes. They also concern what we 
ought to do. For if there are other such beings, the elitist hierar- 
chical view does not collapse into the “Kantian” side-constraint 
view, as far as we are concerned. A person may not sacrifice one of 
his fellows for his own benefit or that of another of his fellows, 
but may he sacrifice one of his fellows for the benefit of the higher 
beings? (We also will be interested in the question of whether the 
higher beings may sacrifice us for their own benefit.) 



48 


State-of-Nature Theory 


WHAT ARE CONSTRAINTS BASED UPON? 

Such questions do not press upon us as practical problems (yet?), 
but they force us to consider fundamental issues about the founda- 
tions of our moral views: first, is our moral view a side-constraint 
view, or a view of a more complicated hierarchical structure; and 
second, in virtue of precisely what characteristics of persons are 
there moral constraints on how they may treat each other or be 
treated? We also want to understand why these characteristics con- 
nect with these constraints. (And, perhaps, we want these charac- 
teristics not to be had by animals; or not had by them in as high a 
degree.) It would appear that a person’s characteristics, by virtue 
of which others are constrained in their treatment of him, must 
themselves be valuable characteristics. How else are we to under- 
stand why something so valuable emerges from them? (This natu- 
ral assumption is worth further scrutiny.) 

The traditional proposals for the important individuating char- 
acteristic connected with moral constraints are the following: sen- 
tient and self-conscious; rational (capable of using abstract con- 
cepts, not tied to responses to immediate stimuli); possessing free 
will; being a moral agent capable of guiding its behavior by moral 
principles and capable of engaging in mutual limitation of con- 
duct; having a soul. Let us ignore questions about how these no- 
tions are precisely to be understood, and whether the character- 
istics are possessed, and possessed uniquely, by man, and instead 
seek their connection with moral constraints on others. Leaving 
aside the last on the list, each of them seems insufficient to forge 
the requisite connection. Why is the fact that a being is very 
smart or foresightful or has an I.Q. above a certain threshold a 
reason to limit specially how we treat it? Would beings even more 
intelligent than we have the right not to limit themselves with 
regard to us? Or, what is the significance of any purported crucial 
threshold? If a being is capable of choosing autonomously among 
alternatives, is there some reason to let it do so? Are autonomous 
choices intrinsically good? If a being could make only once an au- 
tonomous choice, say between flavors of ice cream on a particular 
occasion, and would forget immediately afterwards, would there 



Moral Constraints and the State 


49 


be strong reasons to allow it to choose? That a being can agree 
with others to mutual rule-governed limitations on conduct shows 
that it can observe limits. But it does not show which limits 
should be observed toward it (“no abstaining from murdering 
it”?), or why any limits should be observed at all. 

An intervening variable M is needed for which the listed traits 
are individually necessary, perhaps jointly sufficient (at least we 
should be able to see what needs to be added to obtain M), and 
which has a perspicuous and convincing connection to moral con- 
straints on behavior toward someone with M. Also, in the light of 
M, we should be in a position to see why others have concentrated 
on the traits of rationality, free will, and moral agency. This will 
be easier if these traits are not merely necessary conditions for M 
but also are important components of AI or important means to M. 

But haven’t we been unfair in treating rationality, free will, and 
moral agency individually and separately? In conjunction, don’t 
they add up to something whose significance is clear: a being able 
to formulate long-term plans for its life, able to consider and 
decide on the basis of abstract principles or considerations it for- 
mulates to itself and hence not merely the plaything of immediate 
stimuli, a being that limits its own behavior in accordance with 
some principles or picture it has of what an appropriate life is for 
itself and others, and so on. However, this exceeds the three 
listed traits. We can distinguish theoretically between long-term 
planning and an overall conception of a life that guides particular 
decisions, and the three traits that are their basis. For a being 
could possess these three traits and yet also have built into it some 
particular barrier that prevents it from operating in terms of an 
overall conception of its life and what it is to add up to. So let us 
add, as an additional feature, the ability to regulate and guide its 
life in accordance with some overall conception it chooses to ac- 
cept. Such an overall conception, and knowing how we are doing 
in terms of it, is important to the kind of goals we formulate for 
ourselves and the kind of beings we are. Think how different we 
would be (and how differently it would be legitimate to treat us) if 
we all were amnesiacs, forgetting each evening as we slept the 
happenings of the preceding day. Even if by accident someone 
were to pick up each day where he left off the previous day, living 



5 ° 


State-of -Nature Theory 


in accordance with a coherent conception an aware individual 
might have chosen, he still would not be leading the other’s sort 
of life. His life would parallel the other life, but it would not be 
integrated in the same way. 

What is the moral importance of this additional ability to form 
a picture of one’s whole life (or at least of significant chunks of it) 
and to act in terms of some overall conception of the life one 
wishes to lead? Why not interfere with someone else’s shaping of 
his own life? (And what of those not actively shaping their lives, 
but drifting with the forces that play upon them?) One might note 
that anyone might come up with the pattern of life you would 
wish to adopt. Since one cannot predict in advance that someone 
won’t, it is in your self-interest to allow another to pursue his con- 
ception of his life as he sees it; you may learn (to emulate or avoid 
or modify) from his example. This prudential argument seems 
insufficient. 

I conjecture that the answer is connected with that elusive and 
difficult notion: the meaning of life. A person’s shaping his life in 
accordance with some overall plan is his way of giving meaning to 
his life; only a being with the capacity to so shape his life can have 
or strive for meaningful life. But even supposing that we could 
elaborate and clarify this notion satisfactorily, we would face many 
difficult questions. Is the capacity so to shape a life itself the capac- 
ity to have (or strive for?) a life with meaning, or is something else 
required? (For ethics, might the content of the attribute of having 
a soul simply be that the being strives, or is capable of striving, to 
give meaning to its life?) Why are there constraints on how we 
may treat beings shaping their lives? Are certain modes of treat- 
ment incompatible with their having meaningful lives? And even 
if so, why not destroy meaningful lives? Or, why not replace “hap- 
piness” with “meaningfulness” within utilitarian theory, and max- 
imize the total “meaningfulness” score of the persons of the world? 
Or does the notion of the meaningfulness of a life enter into ethics 
in a different fashion? This notion, we should note, has the right 
“feel” as something that might help to bridge an “is-ought” gap; 
it appropriately seems to straddle the two. Suppose, for example, 
that one could show that if a person acted in certain ways his 
life would be meaningless. Would this be a hypothetical or 



Moral Constraints and the State 


5i 


a categorical imperative? Would one need to answer the further 
question: “But why shouldn’t my life be meaningless?” Or, sup- 
pose that acting in a certain way toward others was itself a way of 
granting that one’s own life (and those very actions) was meaning- 
less. Mightn’t this, resembling a pragmatic contradiction, lead at 
least to a status 2 conclusion of side constraints in behavior to all 
other human beings? I hope to grapple with these and related 
issues on another occasion. 


THE INDIVIDUALIST ANARCHIST 

We have surveyed the important issues underlying the view that 
moral side constraints limit how people may behave to each other, 
and we may return now to the private protection scheme. A sys- 
tem of private protection, even when one protective agency is 
dominant in a geographical territory, appears to fall short of a 
state. It apparently does not provide protection for everyone in its 
territory, as does a state, and it apparently does not possess or 
claim the sort of monopoly over the use of force necessary to a 
state. In our earlier terminology, it apparently does not constitute 
a minimal state, and it apparently does not even constitute an ul- 
traminimal state. 

These very ways in which the dominant protective agency or as- 
sociation in a territory apparently falls short of being a state pro- 
vide the focus of the individualist anarchist’s complaint against the 
state. For he holds that when the state monopolizes the use of 
force in a territory and punishes others who violate its monopoly, 
and when the state provides protection for everyone by forcing 
some to purchase protection for others, it violates moral side con- 
straints on how individuals may be treated. Hence, he concludes, 
the state itself is intrinsically immoral. The state grants that under 
some circumstances it is legitimate to punish persons who violate 
the rights of others, for it itself does so. How then does it arrogate 
to itself the right to forbid private exaction of justice by other 
nonaggressive individuals whose rights have been violated? What 
right does the private exacter of justice violate that is not violated 



52 


State-of-Nature Theory 


also by the state when it punishes? When a group of persons con- 
stitute themselves as the state and begin to punish, and forbid 
others from doing likewise, is there some right these others would vi- 
olate that they themselves do not? By what right, then, can the 
state and its officials claim a unique right (a privilege) with regard 
to force and enforce this monopoly? If the private exacter of justice 
violates no one’s rights, then punishing him for his actions (ac- 
tions state officials also perform) violates his rights and hence vio- 
lates moral side constraints. Monopolizing the use of force then, 
on this view, is itself immoral, as is redistribution through the 
compulsory tax apparatus of the state. Peaceful individuals mind- 
ing their own business are not violating the rights of others. It 
does not constitute a violation of someone’s rights to refrain from 
purchasing something for him (that you have not entered specifi- 
cally into an obligation to buy). Hence, so the argument con- 
tinues, when the state threatens someone with punishment if he 
does not contribute to the protection of another, it violates (and its 
officials violate) his rights. In threatening him with something 
that would be a violation of his rights if done by a private citizen, 
they violate moral constraints. 

To get to something recognizable as a state we must show (i) 
how an ultraminimal state arises out of the system of private pro- 
tective associations; and (2) how the ultraminimal state is trans- 
formed into the minimal state, how it gives rise to that “redistri- 
bution” for the general provision of protective services that 
constitutes it as the minimal state. To show that the minimal state 
is morally legitimate, to show it is not immoral itself, we must 
show also that these transitions in (1) and (2) each are morally le- 
gitimate. In the rest of Part I of this work we show how each of 
these transitions occurs and is morally permissible. We argue that 
the first transition, from a system of private protective agencies to 
an ultraminimal state, will occur by an invisible-hand process in a 
morally permissible way that violates no one’s rights. Secondly, we 
argue that the transition from an ultraminimal state to a minimal 
state morally must occur. It would be morally impermissible for 
persons to maintain the monopoly in the ultraminimal state with- 
out providing protective services for all, even if this requires spe- 
cific “redistribution.” The operators of the ultraminimal state are 
morally obligated to produce the minimal state. The remainder of 



Moral Constraints and the State 


53 


Part I, then, attempts to justify the minimal state. In Part II, we 
argue that no state more powerful or extensive than the minimal 
state is legitimate or justifiable; hence that Part I justifies all that 
can be justified. In Part III, we argue that the conclusion of Part II 
is not an unhappy one; that in addition to being uniquely right, 
the minimal state is not uninspiring. 



CHAPTER 

4 


Prohibition, Compensation, 
and Risk 


INDEPENDENTS AND THE DOMINANT 
PROTECTIVE AGENCY 

^ ^ ET us suppose that interspersed among a large group of per- 
sons who deal with one protective agency lives some minuscule 
group who do not. These few independents (perhaps even only 
one) jointly or individually enforce their own rights against one 
and all, including clients of the agency. This situation might have 
arisen if native Americans had not been forced off their land and if 
some had refused to affiliate with the surrounding society of the 
settlers. Locke held that no one may be forced to enter civil soci- 
ety; some may abstain and stay in the liberty of the state of nature, 
even if most choose to enter (§ 95). 1 

How might the protective association and its members deal 
with this? They might try to isolate themselves from the indepen- 
dents in their midst by forbidding anyone permission to enter 
their property who hadn’t agreed to forgo exercising rights of re- 
taliation and punishment. The geographical territory covered by 
the protective association then might resemble a slice of Swiss 


54 




Prohibition, Compensation, and Risk 


55 


cheese, with internal as well as external boundaries.* But this 
would leave acute problems of relations with independents who 
had devices enabling them to retaliate across the boundaries, or 
who had helicopters to travel directly to wrongdoers without tres- 
pass upon anyone else’s land, + and so on. 

Instead of (or in addition to) attempts at geographically isolat- 
ing independents, one might punish them for their misenforce- 
ments of their rights of retaliation, punishment, and exaction of 
compensation. An independent would be allowed to proceed to en- 
force his rights as he sees them and as he sees the facts of his situa- 
tion; afterwards the members of the protective association would 
check to see whether he had acted wrongly or overacted. If and 
only if he had done so, would they punish him or exact compensa- 
tion from him . 2 

But the victim of the independent’s wrongful and unjust retalia- 
tion may be not only damaged but seriously injured and perhaps 


* The possibility of surrounding an individual presents a difficulty for a 
libertarian theory that contemplates private ownership of all roads and streets, 
with no public ways of access. A person might trap another by purchasing the 
land around him, leaving no way to leave without trespass. It won’t do to say 
that an individual shouldn’t go to or be in a place without having acquired from 
adjacent owners the right to pass through and exit. Even if we leave aside ques- 
tions about the desirability of a system that allows someone who has neglected 
to purchase exit rights to be trapped in a single place, though he has done no 
punishable wrong, by a malicious and wealthy enemy (perhaps the president of 
the corporation that owns all the local regular thoroughfares), there remains the 
question of “exit to where?” Whatever provisions he has made, anyone can be 
surrounded by enemies who cast their nets widely enough. The adequacy of 
libertarian theory cannot depend upon technological devices being available, 
such as helicopters able to lift straight up above the height of private airspace in 
order to transport him away without trespass. We handle this issue by the 
proviso on transfers and exchanges in Chapter 7. 

f Lacking other avenues of redress, one may trespass on another’s land to get 
what one is due from him or to give him what he deserves, provided that he re- 
fuses to pay or to make himself easily available for punishment. B does not vio- 
late A ’s property rights in his wallet by touching it, or by opening its seal if A 
refuses to do so, in the course of extracting money A owes him yet refuses to 
pay or transfer over; A must pay what he owes; if A refuses to place it in B’s 
possession, as a means to maintaining his rights, B may do things he otherwise 
would not be entitled to do. Thus the quality of Portia’s reasoning is as strained 
in holding that Shylock is entitled to take exactly one pound of flesh but not to 
shed a drop of Antonio’s blood as is the quality of her mercy as she cooperates 
in requiring that to save his life Shylock must convert to Christianity and 
dispose of his property in a way hateful to him. 



5<S 


State-of-Nature Theory 


even killed. Must one wait to act until afterwards? Surely there 
would be some probability of the independent’s misenforcing his 
rights, which is high enough (though less than unity) to justify 
the protective association in stopping him until it determines 
whether his rights indeed were violated by its client. Wouldn't 
this be a legitimate way to defend their clients? 3 Won’t people 
choose to do business only with agencies that offer their clients 
protection, by announcing they will punish anyone who punishes a 
client without first using some particular sort of procedure to es- 
tablish his right to do this, independently of whether it turns out 
that he could have established this right? Is it not within a person’s 
rights to announce that he will not allow himself to be punished 
without its first being established that he has wronged someone? 
May he not appoint a protective association as his agent to make 
and carry out this announcement and to oversee any process used 
to try to establish his guilt? (Is anyone known so to lack the capac- 
ity to harm another, that others would exclude him from the scope 
of this announcement?) But suppose an independent, in the pro- 
cess of exacting punishment, tells the protective agency to get out 
of his way, on the grounds that the agency’s client deserves pun- 
ishment, that he (the independent) has a right to punish him, that 
he is not violating anyone’s rights, and that it’s not his fault if the 
protective agency doesn’t know this. Must the agency then abstain 
from intervening? On the same grounds may the independent 
demand that the person himself refrain from defending himself 
against the infliction of punishment? And if the protective agency 
tries to punish an independent who punished a client, indepen- 
dently of whether their client did violate the independent’s rights, 
isn’t the independent within his rights to defend himself against 
the agency? To answer these questions and hence to decide how a 
dominant protective agency may act toward independents, we 
must investigate the moral status within a state of nature of proce- 
dural rights and of prohibitions upon risky activities, and also 
what knowledge is presumed by principles about the exercise of 
rights, including especially rights to enforce other rights. To these 
issues, difficult ones for the natural-rights tradition, we now turn. 



Prohibition, Compensation, and Risk 


57 


PROHIBITION AND COMPENSATION 

A line (or hyper-plane) circumscribes an area in moral space 
around an individual. Locke holds that this line is determined by 
an individual’s natural rights, which limit the action of others. 
Non-Lockeans view other considerations as setting the position 
and contour of the line . 4 In any case the following question arises: 
Are others forbidden to perform actions that transgress the boundary or 
encroach upon the circumscribed area, or are they permitted to perform 
such actions provided that they compensate the person whose boundary has 
been crossed? Unravelling this question will occupy us for much of 
this chapter. Let us say that a system forbids an action to a person 
if it imposes (is geared to impose) some penalty upon him for 
doing the act, in addition to exacting compensation from him for 
the act’s victims.* Something fully compensates a person for a loss 
if and only if it makes him no worse off than he otherwise would 
have been; it compensates person X for person Y’s action A if X is 
no worse off receiving it, Y having done A, than X would have 
been without receiving it if Y had not done A. (In the terminology 
of economists, something compensates X for Y’s act if receiving it 
leaves X on at least as high an indifference curve as he would have 
been on, without it, had Y not so acted.) + Shamelessly, I ignore 
general problems about the counterfactual “as well off (on as high an 
indifference curve) as X would have been if Y’s action hadn’t oc- 
curred.” I also ignore particular difficulties; for example, ifX’s posi- 
tion was deteriorating (or improving) at the time, is the baseline 
for compensation where he was heading or where he was then? Are 
things changed ifX’s position would have worsened anyway the next 
day? But one question must be discussed. Does the compensation 
to X for Y’s actions take into account X’s best response to these ac- 
tions, or not? If X responded by rearranging his other activities and 

* This sufficient condition for prohibiting or forbidding an action is not a 
necessary one. An action may be forbidden without there being any provision 
for its victims to be fully or at all compensated. Our purposes here do not 
require a general account of forbidding and prohibiting. 

t When is a person to be indifferent between the two situations — the time at 
which compensation is paid (which would encourage boundary crossing, since 
time heals wounds), or the time of the original act? 



5 « 


State-of -Nature Theory 


assets to limit his losses (or if he made prior provision to limit 
them), should this benefit Y by lessening the compensation he 
must pay? Alternatively, if X makes no attempt to rearrange his 
activities to cope with what Y has done, must Y compensate X for 
the full damage X suffers? Such behavior on X’s part may seem ir- 
rational; but if Y is required to compensate X for his full actual 
loss in such cases, then X will not be made worse off by his own 
noncoping, nonadaptive behavior. If so required, Y might lower 
the amount of compensation he must pay by paying X to respond 
adaptively and so to limit losses. We shall tentatively adopt an- 
other view of compensation, one which presumes reasonable pre- 
cautions and adjusting activities by X. These activities would 
place X (given Y’s acts) on a certain indifference curve I; Y is 
required to raise X above his actual position by an amount equal 
to the difference between his position on I and his original posi- 
tion. y compensates X for how much worse off y’s action would 
have made a reasonably prudently acting X. (This compensation 
structure uses measurement of utility on an interval scale.) 


WHY EVER PROHIBIT? 

A person may choose to do himself, I shall suppose, the things 
that would impinge across his boundaries when done without his 
consent by another. (Some of these things may be impossible for 
him to do to himself.) Also, he may give another permission to do 
these things to him (including things impossible for him to do to 
himself). Voluntary consent opens the border for crossings. Locke, 
of course, would hold that there are things others may not do to 
you by your permission; namely, those things you have no right to 
do to yourself . 5 Locke would hold that your giving your permis- 
sion cannot make it morally permissible for another to kill you, 
because you have no right to commit suicide. My nonpaternalistic 
position holds that someone may choose (or permit another) to do 
to himself anything, unless he has acquired an obligation to some 
third party not to do or allow it. This should cause no difficulty 
for the remainder of this chapter. Let those who disagree imagine 



Prohibition, Compensation, and Risk 


59 


our discussion to be limited to those actions about which (they 
admit) the position does hold; and we can proceed along together, 
having factored out that divisive and, for immediate purposes, ir- 
relevant issue. 

Two contrasting questions delimit our present concern: 

1. Why is any action ever prohibited, rather than allowed, provided 
its victims are compensated? 

2 . Why not prohibit all crossings of the moral boundary that the party 
impinged upon did not first consent to? Why ever permit anyone to 
cross another’s boundary without prior consent? 6 

Our first question is too broad. For a system allowing acts A 
provided compensation is paid must prohibit at least the joint act 
of doing A and refusing to pay compensation. To narrow the issue, 
let us suppose there exist easy means to collect assessed compensa- 
tion . 7 Compensation is easily collected, once it is known who owes 
it. But those who cross another’s protected boundary sometimes 
escape without revealing their identity. Merely to require (upon 
detection, apprehension, and determination of guilt) compensation 
of the victim might be insufficient to deter someone from an ac- 
tion. Why wouldn’t he attempt continually to get away with it, to 
gain without paying compensation? True, if apprehended and 
judged guilty, he would be required to pay the costs of detecting, 
apprehending, and trying him; perhaps these possible additional 
costs would be sufficiently great to deter him. But they might not 
be. So one might be led to prohibit doing certain acts without 
paying compensation, and to impose penalties upon those who re- 
fuse to pay compensation or who fail to identify themselves as the 
crossers of certain boundaries. 


RETRIBUTIVE AND DETERRENCE THEORIES 
OF PUNISHMENT 


A person’s option of crossing a boundary is constituted by a (i —p) 
chance of gain G from the act, where p is the probability he is 
apprehended, combined with the probability p of paying various 



6o 


State-of -Nature Theory 


costs of the act. These costs are first, the compensation to the vic- 
tim over and above returning whatever transferable thing may be 
left from the ill-gotten gains, which we shall label C. In addition, 
since any nonremovable benefit from carrying out the act (for ex- 
ample, pleasure over fond memories) also will be exactly counter- 
balanced so as to leave none net, we may ignore it in what follows. 
Other costs are the psychological, social, and emotional costs of 
being apprehended, placed on trial, and so on (call them D ); and 
the financial costs (call them E) of the processes of apprehension 
and trial which he must pay since they were produced by his at- 
tempt to evade paying compensation. Prospects for deterrence look 
dim if the expected costs of a boundary crossing are less than its 
expected gain; that is, if pX(C + D + E) is less than (i —p) X G. 
(Nevertheless, a person may refrain from a boundary crossing be- 
cause he has something better to do, an option available to him 
with even higher expected utility.) If apprehension is imperfect, 
though inexpensive, additional penalties may be needed to deter 
crimes. (Attempts to evade paying compensation then would be 
made prohibited acts.) 

Such considerations pose difficulties for retributive theories that 
set, on retributive grounds, an upper limit to the penalty that may 
be inflicted upon a person. Let us suppose (on such theories) that 
R, the retribution deserved, equals r X H; where H is a measure of 
the seriousness of the harm of the act, and r (ranging between 
o and i inclusive) indicates the person’s degree of responsibility 
for H. (We pass over the delicate issue of whether H represents 
the harm intended or the harm done or some function of both of 
these; or whether this varies with the type of case.) * When others 
will know that r = i , they will believe that R=H. A person 
deciding whether to perform some harmful action then faces a 
probability (i —p) of gain G, and a probability p of paying out 
(C+D +E+R). Usually (though not always) the gain from a 
boundary crossing is close to the loss or harm it inflicts on the 
other party; R will be somewhere in the neighborhood of G. But 

* We also pass over whether the retribution includes a component represent- 
ing the wrongness of the act it responds to. Those retributive theories that hold 
the punishment somehow should match the crime face a dilemma: either punish- 
ment fails to match the wrongness of the crime and so doesn’t retribute fully, or 
it matches the wrongness of the crime and so is unjustified. 



Prohibition, Compensation, and Risk 61 

when p is small, or R is, p X (C + D + E + R) may be less than 
(i —p) X G, often leaving no deterrence.* 

Retributive theory seems to allow failures of deterrence. Deter- 
rence theorists (though they wouldn’t choose to) would be in a 
position to gloat at retributivists’ squirming over this, if they 
themselves possessed another theory. But “the penalty for a crime 
should be the minimal one necessary to deter commission of it” 
provides no guidance until we’re told bow much commission of it is 
to be deterred. If all commission is to be deterred, so that the 
crime is eliminated, the penalty will be set unacceptably high. If 
only one instance of the crime is to be deterred, so that there is 
merely less of the crime than there would be with no penalty at 
all, the penalty will be unacceptably low and will lead to almost 
zero deterrence. Where in between is the goal and penalty to be 
set? Deterrence theorists of the utilitarian sort would suggest 
(something like) setting the penalty P for a crime at the least point 
where any penalty for the crime greater than P would lead to more 
additional unhappiness inflicted in punishment than would be 
saved to the (potential) victims of the crimes deterred by the addi- 
tional increment in punishment. 

This utilitarian suggestion equates the unhappiness the crimi- 
nal’s punishment causes him with the unhappiness a crime causes 
its victim. It gives these two unhappinesses the same weight in 
calculating a social optimum. So the utilitarian would refuse to 
raise the penalty for a crime, even though the greater penalty (well 
below any retributive upper limit) would deter more crimes, so 
long as it increases the unhappiness of those penalized more, even 
slightly, than it diminishes the unhappiness of those it saves from 
being victimized by the crime, and of those it deters and saves 
from punishment. (Will the utilitarian at least always select, be- 
tween two amounts of penalty that equally maximize the total 
happiness, the option that minimizes the unhappiness of the vic- 


* Recall that C + D + E + R measures the agent's loss as compared to his ini- 
tial position, not as compared to his position after gaining from the other party 
by inflicting damage upon him. We ignore here the question of whether the 
cost imposed shouldn't be C + D + 2E +R, with the second E deserved for at- 
tempting to impose a cost of fruitless search upon the apparatus of detection 
and apprehension; or rather whether the R in C +D +E +R shouldn’t also con- 
tain this second £ as a component. 



62 


State-of -Nature Theory 


tims?) Constructing counterexamples to this bizarre view is left as 
an exercise for the reader. Utilitarian deterrence “theory” could 
avoid this consequence, it seems, only by giving lesser weight to 
the punished party’s unhappiness. One would suppose that consid- 
erations of desert, which deterrence theorists had thought avoid- 
able if not incoherent, would play a role here; one would suppose 
this if one weren’t bewildered at how to proceed, even using such 
considerations, in assigning the “proper” weight to different per- 
sons’ (un)happiness. The retributive theorist, on the other hand, 
doesn’t have to say that a felon’s happiness is less important than 
his victim’s. For the retributivist does not view determining the 
proper punishment as a task of weighing and weighting and allo- 
cating happiness at all. * 

We can connect the retributive framework with some issues 
about self-defense. According to the retributive theory, the pun- 
ishment deserved is r X H, where H is the amount of harm (done 
or intended) and r is the person’s degree of responsibility for 
bringing about H. We shall assume that the expected value of the 
harm to be visited upon a victim equals H (which fails to hold 
only if the person’s intentions fail to fit his objective situation). A 
rule of proportionality then sets an upper limit on the defensive 
harm which may be inflicted in self-defense on the doer of H. It 
makes the upper magnitude of the permissible defensive harm 
some function / of H, which varies directly with H (the greater H 
is, the greater is f(H) ), and such that f(H)>H. (Or at least, on 
any view, f(H)^H.) Notice that this rule of proportionality does 
not mention the degree of responsibility r; it applies whether or 
not the doer is responsible for the harm he will cause. In this re- 
spect it differs from a rule of proportionality which makes the 
upper limit of self-defense a function of rXH. The latter sort of 


* We should note the interesting possibility that contemporary governments 
might make penalties (in addition to compensation) monetary, and use them to 
finance various government activities. Perhaps some resources left to spend 
would be yielded by the retributive penalties in addition to compensation, and 
by the extra penalties needed to deter because of less than certain apprehension. 
Since the victims of the crimes of those people apprehended are fully compen- 
sated, it is not clear that the remaining funds (especially those yielded by 
application of the retributive theory) must go toward compensating the victims 
of uncaught criminals. Presumably a protective association would use such 
funds to reduce the price of its services. 



Prohibition, Compensation, and Risk 


63 


rule yields our judgment that, all other things being equal, one 
may use more force in self-defense against someone whose r is 
greater than zero. The structure we present here can yield this 
as follows. One may, in defending oneself, draw against the pun- 
ishment the attacker deserves (which is r X H). So the upper lim- 
it of what one may use in self-defense against a doer of harm H 
is f(H) + rXH. When an amount A in addition to /(H) is ex- 
pended in self-defense, the punishment which later may be in- 
flicted is reduced by that amount and becomes rXH— A. When 
r = o,f(H) + rXH reduces to /(H). Finally, there will be some 
specification of a rule of necessity which requires one not to use 
more in self-defense than is necessary to repel the attack. If what 
is necessary is more than f(H) + rXH, there will be a duty to 
retreat. * 


DIVIDING THE BENEFITS OF EXCHANGE 

Let us return to the first of our two questions: why not allow any 
boundary crossing provided full compensation is paid? Full com- 
pensation keeps the victim on as high an indifference curve as he 
would occupy if the other person hadn’t crossed. Therefore a sys- 
tem that allows all boundary impingements provided that full com- 
pensation in paid is equivalent to a system requiring that all prior 
agreements about the right to cross a border be reached at that 
point on the contract curve 8 most favorable to the buyer of the 
right. If you would be willing to pay as much as $n for the right 
to do something to me, and $m is the least I would accept (receiv- 
ing less than $m places me on a lower indifference curve), then 
there is the possibility of our striking a mutually advantageous 
bargain if n^-m. Within the range between $n and $m, where 


* An interesting discussion of these diverse issues is contained in George P. 
Fletcher, “Proportionality and the Psychotic Aggressor "Israel Law Review, Vol. 
8, No. 3, July 1973, pp. 367—390. Despite Fletcher’s claim that there is no 
way to say both that one may use deadly force in self-defense against a psychotic 
aggressor (whose r = o) and that we are subject to some rule of proportionality, 
I believe our structure presented in the text yields both these results and satis- 
fies the diverse conditions one wants to impose. 



64 


State-of-Nature Theory 


should the price be set? One cannot say, lacking any acceptable 
theory of a just or fair price (witness the various attempts to con- 
struct arbitration models for two-person, nonconstant sum games). 
Certainly, no reason has even been produced to think that all 
exchanges should take place at that point on the contract curve one 
of the parties most favors, to make the benefits of the exchange 
redound solely to that party. Allowing boundary crossing provided 
only that full compensation is paid “solves” the problem of dis- 
tributing the benefits of voluntary exchange in an unfair and arbi- 
trary manner.* 

Consider further how such a system allocates goods. Anyone can 
seize a good, thereby coming to “own” it, provided he compen- 
sates its owner. If several people want a good, the first to seize it 
gets it, until another takes it, paying him full compensation. 
(Why should this sort of middleman receive anything?) 9 What 
amount would compensate the original owner if several persons 
wanted a particular good? An owner who knew of this demand 
might well come to value his good by its market price, and so be 
placed on a lower indifference curve by receiving less. (Where 
markets exist, isn’t the market price the least price a seller would 
accept? Would markets exist here?) Complicated combinations of 
subjunctive conditionals and counterfactuals might perhaps suc- 
ceed in disentangling an owner’s preferences from his knowledge of 
the desires of others and the prices they are willing to pay. But no 
one yet has actually provided the requisite combinations. f A sys- 


* One may be tempted to delimit partially the area where full compensation 
is permissible by distinguishing between using something as a resource in a 
productive process and damaging something as a side effect in a process. Paying 
only full compensation would be viewed as permissible in the latter case, and 
market prices as desirable in the former, because of the issue of dividing the 
benefits of economic exchange. This approach won’t do, for dumping grounds 
for effects are also priceable and marketable resources. 

t A similar problem arises with economists’ usual explanation of exchange. 
Earlier views had held that there must be equality in something or other be- 
tween goods that persons are willing mutually to exchange. For otherwise, it 
was thought, one party would be the loser. In reply economists point out that 
mutually advantageous exchange requires only opposed preferences. If one per- 
son prefers having the other’s good to having his own, and similarly the other 
person prefers having the first’s good to having his own, then an exchange may 
benefit both. Neither will lose, even though there is nothing in which their 
goods are equal. One might object that opposed preferences aren’t necessary 



Prohibition, Compensation, and Risk 


65 


tem cannot avoid the charge of unfairness by letting the compensa- 
tion paid for a border crossing equal that price that would have 
been arrived at had a prior negotiation for permission taken place. 
(Call this compensation “market compensation.’’ It will usually be 
more than merely full compensation.) The best method to discover 
this price, of course, is to let the negotiations actually take place 
and see what their upshot is. Any other procedure would be highly 
inaccurate, as well as incredibly cumbersome. 


FEAR AND PROHIBITION 

The further considerations that militate against freely allowing all 
acts provided compensation is paid, in addition to those concern- 
ing the fairness of the exchange price, are in many ways the most 
interesting, //some injuries are not compensable, they would not 


(even apart from questions about whether exchanges might not take place be- 
tween parties indifferent between two commodities, or might not advan- 
tageously take place between two persons with identical preferences and iden- 
tical initial mixed holdings of two goods when each person prefers either 
unmixed holding to any mixed one and each is indifferent between the two un- 
mixed holdings). For example, in three-way baseball trades one team may trade 
away a player for another they prefer having less than the one they trade away, 
in order to trade this other player to yet another team for a third player they 
prefer having more than the first. It might be replied that since the first team 
knows that the second player can be traded for the third, they do prefer having 
the second (who is easily transformable into the third player, via exchange) to 
having the first player. Thus, the reply continues, the team’s first exchange is 
not for a less preferred object, nor does this exchange move the team to a lower 
indifference curve. The general principle would be that anyone who knows that 
one good is transformable into another (via exchange or in any other way) pref- 
erentially ranks the first at least as high as the second. (Omitting costs of trans- 
formation does not affect the point at issue.) But this principle, apparently nec- 
essary to explain simple three-way exchanges, conflicts with the earlier 
explanation of exchange in terms of opposed preferences. For this principle has 
the consequence that a person does not prefer having another’s good to having 
his own. For his own can be transformed into the other (via the exchange to be 
explained), and so he preferentially ranks it at least as high as the other. 

The various routes out of this difficulty that suggest themselves and that sur- 
vive cursory examination (remember that two different parties each can offer a 
commodity to someone for his) all seem to involve complicated and involuted 
bundles of subjunctives and counterfactuals. 




66 


State-of -Nature Theory 


fall under a policy of being allowed so long as compensation is 
paid. (Rather, they would be allowed provided compensation was 
paid, but since the compensation could not be paid by anyone, in 
effect they would be unallowed.) Leaving that difficult issue aside, 
even some acts that can be compensated for may be prohibited. 
Among those acts that can be compensated for, some arouse fear. 
We fear these acts happening to us, even if we know that we shall 
be compensated fully for them. X, learning that Y slipped in front 
of someone’s house, broke his arm, and collected $2,000 after 
suing for compensation for injuries, might think, “How fortunate 
for Y to have that happen; it’s worth breaking one’s arm in order 
to get $2,000; that completely covers the injury.” But if someone 
then came up to X and said, “I may break your arm in the next 
month, and if I do I will give you $2,000 in compensation; 
though if I decide not to break it I won’t give you anything,” 
would X dwell upon his good fortune? Wouldn’t he instead walk 
around apprehensive, jumping at noises behind him, nervous in 
the expectation that pain might descend suddenly upon him? A 
system that allowed assaults to take place provided the victims 
were compensated afterwards would lead to apprehensive people, 
afraid of assault, sudden attack, and harm. Does this provide a 
reason to prohibit assaults? Why couldn’t someone who commits 
assault compensate his victim not merely for the assault and its ef- 
fects, but also for all the fear the victim felt in awaiting some as- 
sault or other? But under a general system which permits assault 
provided compensation is paid, a victim’s fear is not caused by the 
particular person who assaulted him. Why then should this as- 
saulter have to compensate him for it? And who will compensate all 
the other apprehensive persons, who didn't happen to get assaulted, for 
their fear? 

Some things we would fear, even knowing we shall be compen- 
sated fully for their happening or being done to us. To avoid such 
general apprehension and fear, these acts are prohibited and made 
punishable. (Of course, prohibiting an act does not guarantee its 
noncommission and so does not ensure that people will feel secure. 
Where acts of assault, though forbidden, were frequently and 
unpredictably done, people still would be afraid.) Not every kind 
of border crossing creates such fear. If told that my automobile 
may be taken during the next month, and I will be compensated 



Prohibition, Compensation, and Risk 


67 


fully afterwards for the taking and for any inconvenience being 
without the car causes me, I do not spend the month nervous, 
apprehensive, and fearful. 

This provides one dimension of a distinction between private 
wrongs and wrongs having a public component. Private wrongs 
are those where only the injured party need be compensated; per- 
sons who know they will be compensated fully do not fear them. 
Public wrongs are those people are fearful of, even though they 
know they will be compensated fully if and when the wrongs 
occur. Even under the strongest compensation proposal which 
compensates victims for their fear, some people (the nonvictims) 
will not be compensated for their fear. Therefore there is a legiti- 
mate public interest in eliminating these border-crossing acts, 
especially because their commission raises everyone’s fear of its 
happening to them. 

Can this result be sidestepped? For example, there would not be 
this increase in fear if victims were compensated immediately, and 
also bribed to keep silent. Others wouldn’t know the act had been 
done, and so it wouldn’t render them more apprehensive by lead- 
ing them to think that the probability of its happening to them 
was higher. The difficulty is that the knowledge that one is living 
under a system permitting this, itself produces apprehension. How 
can anyone estimate the statistical chances of something’s happen- 
ing to him when all reports of it are squelched? Thus even in this 
highly artificial case it is not merely the victim who is injured by 
its happening in a system that is known to allow it to happen. The 
widespread fear makes the actual occurrence and countenancing of 
these acts not merely a private matter between the injurer and the 
injured party. (However, since victims compensated and bribed 
after the fact will not complain, enforcing the prohibition on 
these crimes which leave satisfied victims will illustrate the prob- 
lems about enforcing prohibitions on so-called crimes without 
victims.) * 


* Note that not every act that produces lower utility for others generally 
may be forbidden; it must cross the boundary of others’ rights for the question 
of its prohibition even to arise. Note also that no such considerations of fear 
apply to a system of allowing any acts that have the prior consent of the person 
whose boundary is crossed. Anyone who worries that under such a system he 
foolishly might consent to something can ensure that he won’t, via voluntary 



68 


State-of -Nature Theory 


A system which allows fear-producing acts provided their vic- 
tims are compensated, we have said, itself has a cost in the uncom- 
pensated for fear of those potential victims who are not actual vic- 
tims. Would this defect of the system be avoided by someone who 
announced he would do a certain act at will, and not only would 
he compensate all of his victims, if any, but he would also com- 
pensate everyone who felt fear as a result of his announcement, 
even though he hadn’t actually done the act to them? This would 
be so expensive as to be beyond the means of almost everyone. But 
wouldn’t it slip through our argument for prohibiting those 
border crossings whose allowance (with compensation) would pro- 
duce a general fear for which the populace would not be compen- 
sated? Not easily, for two additional reasons. First, persons might 
have free-floating anxiety about attack, not because they had heard 
some particular announcement, but because they know the system 
permits these attacks after announcement, and so worry that they 
have not heard some. They cannot be compensated for any they 
have not heard of, and they will not file for compensation for the 
fear these caused. Yet they may be the victims of someone whose 
announcement they haven’t heard. No particular announcement 
caused such fear without a specific announcement as its object, so 
who should compensate for it? Thus our argument is repeated one 
level up; but it must be admitted that at this level the fears may be 
so attenuated and insubstantial as to be insufficient to justify 
prohibiting such announcements. Secondly, in line with our earlier 
discussion of fair exchange prices, one might require someone who 
makes such an announcement to make not merely full but market 
compensation. Full compensation is an amount sufficient, but 
barely so, to make the person afterwards say he’s glad, not sorry, it 
happened; and market compensation is the amount that prior ne- 
gotiations to get his consent would have fixed upon. Since fear 
looks very different in hindsight than it does while being un- 
dergone or anticipated, in these cases it will be almost impossible 
to determine accurately what is the amount of market compensa- 
tion, except by actually going through the negotiations. 

Our argument for prohibiting certain actions, such as assaults, 


means (contracts, and so on); secondly, others cannot reasonably be restricted to 
counteract a person’s fear of himself! 



Prohibition, Compensation, and Risk 


69 


assumes that merely to require an attacker to compensate his vic- 
tim for the effects of the attack (though not for any general an- 
ticipatory fear) would not sufficiently deter attacks so as to leave 
people unfearful. The argument from fear fails if that assumption 
is mistaken. (There would remain the argument about the division 
of the benefits of exchange.) We might wonder whether the pun- 
ishment deserved (according to retributive theory) for violating the 
prohibition on doing certain acts might similarly fail to provide 
sufficient deterrence of the acts so as to eliminate the fear and 
apprehension. This is unlikely if the probability of capture is high, 
and the punishment itself is a feared alternative; which punishment 
would not be illegitimate for feared wrongful acts. Even for per- 
sons who benefit much more from an act than its victims are hurt 
(and so, more than the punishment inflicted upon them), this will 
cause no difficulty. Recall that a retributive theory holds that a 
person’s ill-gotten gains are to be removed or counterbalanced, if 
any remain after he has compensated his victims, apart from the 
process of punishment. 

The actual phenomenon of fear of certain acts, even by those 
who know they will receive full compensation if the acts are done 
to them, shows why we prohibit them. Is our argument too utili- 
tarian? If fear isn’t produced by a particular person, how does it 
justify prohibiting him from doing an action provided he pays 
compensation? Our argument goes against the natural assumption 
that only the effects and consequences of an action are relevant to 
deciding whether it may be prohibited. It focuses also on the ef- 
fects and consequences of its not being prohibited. Once stated, it 
is obvious that this must be done, but it would be worthwhile to 
investigate how far-reaching and significant are the implications 
of this divergence from the natural assumption. 

There remains a puzzle about why fear attaches to certain acts. 
After all, if you know that you will be compensated fully for the 
actual effects of an act, so that you will be no worse off (in your 
own view) as a result of its having been done, then what is it that 
you are afraid of? You are not afraid of a drop to a less preferred 
position or a lower indifference curve, for (by hypothesis) you 
know that this won’t occur. Fear will be felt even when the total 
anticipated package is positive, as when someone is told that his 
arm may be broken and that he will be paid $500 more than the 



7 ° 


State-of-Nature Theory 


amount sufficient to compensate fully. The problem is not one of 
determining how much will compensate for the fear, but rather 
why there is any fear at all, given that the total package antici- 
pated is viewed as desirable on the whole. One might suppose that 
the fear exists because the person is unsure that only a broken arm 
will be inflicted upon him; he does not know these limits will be 
observed. But the same problem would arise if it was guaranteed 
that the person would be compensated for whatever happened, or 
if an arm-breaking machine was used in the task, to eliminate the 
question of overstepping the limits. What would a person given 
such guarantees fear? We would like to know what sort of harms 
people actually are afraid of, even when they are part of a total 
package that is viewed as desirable on balance. Fear is not a global 
emotion; it focuses upon parts of packages, independently of “on- 
balance” judgments about the whole. Our present argument for 
the prohibition of compensable border crossings rests on this 
nonglobal character of fear, anxiety, apprehension, and the like . 10 
An answer specifying the types of harms might come in terms of 
ordinary notions such as “physical pain,” or in terms of the no- 
tions of some psychological theory such as “unconditioned aversive 
stimuli.” (But one should not leap to the conclusion that when it 
is known that compensation will be paid, only physical injury or 
pain is feared and viewed with apprehension. Despite knowing 
that they will be compensated if it occurs, people also may fear 
being humiliated, shamed, disgraced, embarrassed, and so on.) 
Secondly, we should like to know whether such fears are due to al- 
terable features of the social environment. If people had been 
raised where great numbers of certain acts were randomly and 
unpredictably performed, would they exhibit great apprehension 
and fear of the risk of these acts, or would they be able to tolerate 
the risks as part of the normal background? (It would be difficult 
to detect or measure their apprehension if it expressed itself in 
heightened general tension. How does one measure how jumpy 
people generally are?) If people growing up in such a more stress- 
ful environment could develop a tolerance for certain acts, show- 
ing few symptoms of fear and stress, we would not have a very deep 
explanation of why certain acts are prohibited (rather than al- 
lowed provided compensation is paid). For the fear of these acts, 



Prohibition, Compensation, and Risk 


7i 


which our explanation rests upon, would not itself be a deep 
phenomenon . 11 


WHY NOT ALWAYS PROHIBIT? 

The argument from general fear justifies prohibiting those bound- 
ary-crossing acts that produce fear even when it is known that 
they will be compensated for. Other considerations converge to 
this result: a system permitting boundary crossing, provided com- 
pensation is paid, embodies the use of persons as means; knowing 
they are being so used, and that their plans and expectations are li- 
able to being thwarted arbitrarily, is a cost to people; some inju- 
ries may not be compensable; and for those that are compensable, 
how can an agent know that the actual compensation payment 
won’t be beyond his means? (Will one be able to insure against 
this contingency?) Do these considerations, combined with those 
about not unfairly distributing the benefits of voluntary exchange, 
suffice to justify prohibiting all other boundary-crossing acts, in- 
cluding those that do not produce fear? Our discussion of the first 
question we posed near the beginning of this chapter — “Why not 
permit all boundary crossings provided compensation is paid?” — 
has led us to the second question posed there — “Why not prohibit 
all boundary crossings to which the victim has not consented in 
advance?” 

The penalization of all impingements not consented to, includ- 
ing accidental ones and those done unintentionally, would incor- 
porate large amounts of risk and insecurity into people’s lives. 
People couldn’t be sure that despite the best of intentions they 
wouldn’t end up being punished for accidental happenings . 12 To 
many, it also seems unfair. Let us put aside these interesting issues 
and focus upon those actions the agent knows will or might well 
impinge across someone’s boundary. Shouldn’t those who have not 
gotten their victims’ prior consent (usually by purchase) be pun- 
ished? The complication is that some factor may prevent obtaining 
this prior consent or make it impossible to do so. (Some factor 
other than the victim’s refusing to agree.) It might be known who 



72 


State-of-Nature Theory 


the victim will be, and exactly what will happen to him, but it 
might be temporarily impossible to communicate with him. Or it 
might be known that some person or other will be the victim of an 
act, but it might be impossible to find out which person. In each 
of these cases, no agreement gaining the victim’s permission to do 
the act can be negotiated in advance. In some other cases it might 
be very costly, though not impossible, to negotiate an agreement. 
The known victim can be communicated with, but only by first 
performing a brain operation on him, or finding him in an African 
jungle, or getting him to cut short his six-month sojourn in a 
monastery where he has taken a vow of silence and abstinence from 
business affairs, and so on; all very costly. Or, the unknown vic- 
tim can be identified in advance only through a very costly survey 
of the whole population of possible victims. 

Any border-crossing act which permissibly may be done pro- 
vided compensation is paid afterwards will be one to which prior 
consent is impossible or very costly to negotiate (which includes, 
ignoring some complications, accidental acts, unintentional acts, 
acts done by mistake, and so on). But not vice versa. Which ones 
then may be done without the victim’s prior consent provided 
compensation is paid afterwards? Not those producing fear in the 
way described earlier.* Can we narrow it down further? Which 
nonfeared activities which do, or might, cross a border may per- 
missibly be done provided compensation is paid? It would be arbi- 
trary to make a hard distinction between its being impossible and 
its being very, very costly to identify the victim or communicate 
with him. (Not merely because it is difficult to know which a 
given case is. If the task used the United States GNP, would it be 
“impossible” or extremely costly?) The rationale for drawing a line 
at that particular place is unclear. The reason one sometimes 
would wish to allow boundary crossings with compensation (when 
prior identification of the victim or communication with him is 
impossible) is presumably the great benefits of the act; it is worth- 
while, ought to be done, and can pay its way. But such reasons 
sometimes will hold, as well, where prior identification and com- 


* An act risking a possible consequence might not produce fear, even though 
it would if known for certain to have that consequence, if the lessened probabil- 
ity dissipates the fear. 



Prohibition, Compensation, and Risk 


73 


munication, though possible, are more costly even than the great 
benefits of the act. Prohibiting such unconsented to acts would en- 
tail forgoing their benefits, as in the cases where negotiation is im- 
possible. The most efficient policy forgoes the fewest net beneficial 
acts; it allows anyone to perform an unfeared action without prior 
agreement, provided the transaction costs of reaching a prior 
agreement are greater, even by a bit, than the costs of the poste- 
rior compensation process. (The party acted upon is compensated 
for his involvement in the process of compensation, as well as for 
the act itself.) But efficiency considerations are insufficient to jus- 
tify unpenalized boundary crossings for marginal benefits, even if 
the compensation is more than full so that the benefits of exchange 
do not redound solely to the boundary crosser. Recall the addi- 
tional considerations against permitting boundary crossings with 
compensation mentioned earlier (p. 71). To say that such acts 
should be allowed if and only if their benefits are “great enough” 
is of little help in the absence of some social mechanism to decide 
this. The three considerations of fear, division of the benefits of 
exchange, and transaction costs delimit our area; but because we 
have not yet found a precise principle involving the last and the 
considerations mentioned earlier (p. 71), they do not yet triangu- 
late a solution in all its detail. 


RISK 

We noted earlier that a risky action might present too low a prob- 
ability of harm to any given person to cause him worry or fear. 
But he might fear a large number of such acts being performed. 
Each individual act’s probability of causing harm falls below the 
threshold necessary for apprehension, but the combined totality of 
the acts may present a significant probability of harm. If different 
persons do each of the various acts in the totality, no one person is 
responsible for the resultant fear. Nor can any one person easily be 
held to cause a distinguishable part of the fear. One action alone 
would not cause fear at all due to the threshold, and one action 
less would probably not diminish the fear. Our earlier consider- 
ations about fear provide a case for the prohibition of this totality 



74 


State-of- -Nature Theory 


of activities. But since parts of the totality could occur without ill 
consequence, it would be unnecessarily stringent to ban each and 
every component act. 13 

How is it to be decided which below-threshold subsets of such 
totalities are to be permitted? To tax each act would require a cen- 
tral or unified taxation and decision-making apparatus. The same 
could be said for social determination of which acts were valuable 
enough to permit, with the other acts forbidden in order to shrink 
the totality to below the threshold. For example, it might be 
decided that mining or running trains is sufficiently valuable to be 
allowed, even though each presents risks to the passerby no less 
than compulsory Russian roulette with one bullet and n chambers 
(with n set appropriately), which is prohibited because it is insuf- 
ficiently valuable. There are problems in a state of nature which 
has no central or unified apparatus capable of making, or entitled 
to make, these decisions. (We discuss in Chapter 5 whether Her- 
bert Hart’s so-called “principle of fairness” aids here.) The prob- 
lems could lessen if the overall states (totality below the thresh- 
old, and so on) can be reached by the operation of some 
invisible-hand mechanism. But the precise mechanism to ac- 
complish this has yet to be described; and it would also have to be 
shown how such a mechanism would arise in a state of nature. 
(Here, as elsewhere, we would have use for a theory specifying 
what macrostates are amenable to production by what sorts of in- 
visible-hand mechanisms.) 

Actions that risk crossing another’s boundary pose serious prob- 
lems for a natural-rights position. (The diversity of cases further 
complicates the issues: it may be known which persons will un- 
dergo a risk or merely that it will happen to someone or other, the 
probability of the harm may be known exactly or within a speci- 
fied range, and so on.) Imposing how slight a probability of a 
harm that violates someone’s rights also violates his rights? Instead 
of one cutoff probability for all harms, perhaps the cutoff probabil- 
ity is lower the more severe the harm. Here one might have the 
picture of a specified value, the same for all acts, to mark the 
boundary of rights violation; an action violates someone’s rights if 
its expected harm to him (that is, its probability of harm to him 
multiplied by a measure of that harm) is greater than, or equal to, 



Prohibition, Compensation, and Risk 


75 


the specified value. But what is the magnitude of the specified 
value? The harm of the least significant act (yielding only that 
harm for certain) that violates a person’s natural rights? This con- 
strual of the problem cannot be utilized by a tradition which holds 
that stealing a penny or a pin or anything from someone violates 
his rights. That tradition does not select a threshold measure of 
harm as a lower limit, in the case of harms certain to occur. It is 
difficult to imagine a principled way in which the natural-rights 
tradition can draw the line to fix which probabilities impose unac- 
ceptably great risks upon others. This means that it is difficult to 
see how, in these cases, the natural-rights tradition draws the 
boundaries it focuses upon.* 

If no natural-law theory has yet specified a precise line delimit- 
ing people’s natural rights in risky situations, what is to happen in 
the state of nature? With regard to any particular action that im- 
poses a risk of a boundary crossing upon others, we have the fol- 
lowing three possibilities: 

1 . The action is prohibited and punishable, even if compensation is paid 

for any boundary crossing, or if it turns out to have crossed no 

boundary. 

2. The action is permitted provided compensation is paid to those per- 
sons whose boundaries actually are crossed. 

* One might plausibly argue that beginning with probabilities that may 
vary continuously and asking that some line be drawn misconstrues the problem 
and almost guarantees that any position of the line (other than o or i) will ap- 
pear arbitrary. An alternative procedure would begin with considerations “per- 
pendicular” to those about probabilities, theoretically developing them into an 
answer to the questions about risky actions. Two types of theories could be de- 
veloped. A theory could specify where a line is to be drawn without this posi- 
tion’s seeming arbitrary, because though the line comes at a place which is not 
special along the probability dimension, it is distinguished along the different 
dimensions considered by the theory. Or, a theory could provide criteria for 
deciding about the risky actions that do not involve drawing a line along the 
probability (or expected value or some similar) dimension, whereby all the ac- 
tions felling on one side of the line are treated in one way and all those on the 
other side in another. The considerations of the theory do not place the actions 
in the same order effected by the probability dimension, nor does the theory 
partition actions into equivalence classes coextensive with some interval parti- 
tion of the unit line. The considerations the theory adduces merely treat the 
question differently, and so have the consequence that some act is forbidden 
while another with a higher expected value of harm is permitted. Unfortunately, 
no satisfactory specific alternative theory of either type has yet been produced. 



7 6 State-of-Nature Theory 

3. The action is permitted provided compensation is paid to all those 
persons who undergo a risk of a boundary crossing, whether or not 
it turns out that their boundary actually is crossed. 

Under the third alternative, people can choose the second; they 
can pool their payments for undergoing risk so as to compensate 
fully those whose boundaries actually are crossed. The third alter- 
native will be plausible if imposing the risk on another plausibly is 
viewed as itself crossing a boundary, to be compensated for, per- 
haps because it is apprehended and hence imposes fear on the 
other.* (Persons voluntarily incurring such risks in the market are 
“compensated” by receiving higher wages for working at risky 
jobs, whether or not the risk eventuates.) 

Charles Fried has recently suggested that people would be will- 
ing to agree to a system that allows them to impose “normal” risks 
of death upon each other, preferring this to a system that forbids 
all such imposing of risk . 14 No one is especially disadvantaged; 
each gains the right to perform risky activities upon others in the 
pursuit of his own ends, in exchange for granting the others the 
right to do the same to him. These risks others impose upon him 
are risks he himself would be willing to undergo in the pursuit of 
his own ends; the same is true of the risks he imposes on others. 
However, the world is so constructed that in pursuing their ends 
people often must impose risks upon others that they cannot take 
directly upon themselves. A trade naturally suggests itself. Put- 
ting Fried’s argument in terms of an exchange suggests another al- 
ternative: namely, explicit compensation for each risk of a bound- 
ary crossing imposed upon another (the third possibility listed 
above). Such a scheme would differ from Fried’s risk pool in the 
direction of greater fairness. However, the process of actually car- 
rying out the payments and ascertaining the precise risk imposed 
upon others and the appropriate compensation would seem to in- 
volve enormous transaction costs. Some efficiencies easily can be 
imagined (for example, keep central records for all, with net pay- 


* Instead of compensating them, can the agent supply tranquilizers to all 
those upon whom the risk is imposed, so that they won’t feel very afraid? 
Should they have to tranquilize themselves, so that it’s not the agent’s concern 
at all if they neglect to do so and feel fear? For an illuminating initial tangling 
of such issues see Ronald Coase, “The Problem of Social Costs "Journal of Law 
and Economics, i960, pp. 1—44. 



Prohibition, Compensation, and Risk 


77 


ments made every n months), but in the absence of some neat in- 
stitutional device it remains enormously cumbersome. Because 
great transaction costs may make the fairest alternative impracti- 
cable, one may search for other alternatives, such as Fried’s risk 
pool. These alternatives will involve constant minor unfairness and 
classes of major ones. For example, children who die from the 
eventuating of the risks of death imposed upon them receive no ac- 
tual benefit comparable to that of the risk imposers. This situation 
is not significantly alleviated by the facts that every adult faced 
these risks as a child and that every child who reaches adulthood 
will be able to impose these risks on yet other children. 

A system that compensates only those upon whom risks even- 
tuate (the second possibility listed above) would be far more man- 
ageable and would involve far smaller costs of operation and trans- 
action than one which pays all those upon whom the risk is 
imposed (the third possibility above). Risks of death present the 
hardest issues. How can the magnitude of the harm be estimated? 
If the harm of death cannot actually be compensated for, the next 
best alternative, even apart from any issue of fear, might be to 
compensate all those upon whom its risk is imposed. But though 
postmortem payment to relatives or favorite charities, upkeep of 
elaborate cemetery arrangements, and so forth, all have obvious 
flaws insofar as the deceased is concerned, an individual himself 
can benefit from a system of postmortem compensatory payment to 
the estates of victims. While alive, he can sell the right to this 
payment, should it have to be made, to a company that purchases 
many such rights. The price would be no greater than the right’s 
expected monetary value (the probability of such payment mul- 
tiplied by the amount); how much lower the price would be would 
depend upon the degree of competition in the industry, the inter- 
est rate, and so on. Such a system would not compensate fully any 
actual victim for the measured harm; and others not actually 
harmed also would benefit from having sold their collection 
rights. But each might view it, ex ante, as a reasonably satisfac- 
tory arrangement. (Earlier we described a way of pooling payments 
and transforming the third possibility into the second; here we 
have a way of transforming the second into the third.) This sys- 
tem also might give an individual a financial incentive to raise 
his “life’s monetary value” as measured by the compensation 



78 State-of -Nature Theory 

criteria, to increase the price for which he could sell the right to 
compensation . 1 5 


THE PRINCIPLE OF COMPENSATION 

Even when permitting an action provided compensation is paid 
(the second or third possibilities above) is prima facie more appro- 
priate for a risky action than prohibiting it (the first possibility 
above), the issue of its being prohibited or permitted to someone 
still is not completely settled. For some persons will lack sufficient 
funds to pay the required compensation should the need arise; and 
they will not have purchased insurance to cover their obligations 
in that eventuality. May these persons be forbidden to perform the 
action? Forbidding an action to those not in a position to pay com- 
pensation differs from forbidding it unless compensation is paid to 
those actually harmed (the second possibility above), in that in the 
former case (but not in the latter) someone who lacks provision for 
paying compensation may be punished for his action even though 
it does not actually harm anyone or cross a boundary. 

Does someone violate another’s rights by performing an action 
without sufficient means or liability insurance to cover its risks? 
May he be forbidden to do this or punished for doing it? Since an 
enormous number of actions do increase risk to others, a society 
which prohibited such uncovered actions would ill fit a picture of a 
free society as one embodying a presumption in favor of liberty, 
under which people permissibly could perform actions so long as 
they didn’t harm others in specified ways. Yet how can people be 
allowed to impose risks on others whom they are not in a position 
to compensate should the need arise? Why should some have to 
bear the costs of others’ freedom? Yet to prohibit risky acts (be- 
cause they are financially uncovered or because they are too risky) 
limits individuals’ freedom to act, even though the actions actually 
might involve no cost at all to anyone else. Any given epileptic, 
for example, might drive throughout his lifetime without thereby 
harming anyone. Forbidding him to drive may not actually lessen 
the harm to others; and for all anyone knows, it doesn’t. (It is true 
that we cannot identify in advance the individual who will turn 



Prohibition, Compensation, and Risk 


79 


out harmless, but why should he bear the full burden of our in- 
ability?) Prohibiting someone from driving in our automobile- 
dependent society, in order to reduce the risk to others, seriously 
disadvantages that person. It costs money to remedy these disad- 
vantages — hiring a chauffeur or using taxis. 

Consider the claim that a person must be compensated for the 
disadvantages imposed upon him by being forbidden to perform 
an activity for these sorts of reasons. Those who benefit from the 
reduction in risks to themselves have to “make it up” to those who 
are restricted. So stated, the net has been cast too broadly. Must I 
really compensate someone when, in self-defense, I stop him from 
playing Russian roulette on me? If some person wishes to use a very 
risky but efficient (and if things go well harmless) process in manu- 
facturing a product, must the residents near the factory compen- 
sate him for the economic loss he suffers from not being allowed to 
use the possibly dangerous process? Surely not. 

Perhaps a few words should be said about pollution — the dumping of 
negative effects upon other people’s property such as their houses, clothing, 
and lungs, and upon unowned things which people benefit from, such as a 
clean and beautiful sky. I shall discuss only effects on property. It would 
be undesirable, and is not excluded by anything I say below, for someone 
to channel all of his pollution effects high above anyone’s property volume, 
making the sky a murky grey-green. Nothing is gained by trying to trans- 
form the second type of case into the first by saying, for example, that 
someone who changes the way the sky looks dumps effects on one’s eyes. 
What follows in this note is incomplete in that it does not treat the second 
type of case. 

Since it would exclude too much to forbid all polluting activities, how 
might a society ( socialist or capitalist) decide which polluting activities to 
forbid and which to permit ? Presumably, it should permit those polluting 
activities whose benefits are greater than their costs, including within 
their costs their polluting effects. The most feasible theoretical test of 
this net benefit is whether the activity could pay its way, whether those 
who benefit from it would be willing to pay enough to cover the costs of 
compensating those ill affected by it. (Those who favor any worthy activity 
that fails this test can make charitable donations to it. ) For example, cer- 
tain modes of airplane service impose noise pollution on homes surrounding 
airports. In one way or another (through lower resale value, lower rent ob- 



8o 


State-of -Nature Theory 


tainable for apartments, and so on), the economic value of these homes is 
diminished. Only if the benefits to air passengers are greater than these 
costs to airport neighbors should the noisier mode of transportation service 
go on. A society must have some way to determine whether the benefits do 
outweigh the costs. Secondly, it must decide how the costs are to be allo- 
cated. It can let them fall where they happen to fall: in our example, on the 
local homeowners. Or it can try to spread the cost throughout the society. 
Or it can place it on those who benefit from the activity: in our example, 
airports, airlines, and ultimately the air passenger. The last, if feasible, 
seems fairest. If a polluting activity is to be allowed to continue on the 
ground that its benefits outweigh its costs {including its polluting costs), 
then those who benefit actually should compensate those upon whom the 
pollution costs are initially thrown. The compensation might encompass 
paying for the costs of devices to lessen the initial pollution effects. In our 
example, airlines or airports might pay for soundproofing a house and then 
pay compensation for how much less the economic value of that house is 
than the value of the original unsoundproofed house in the neighborhood as 
it was without the additional noise. 

When each of the victims of pollution suffers great costs, the usual sys- 
tem of tort liability ( with minor modifications) suffices to yield this result. 
Enforcing other people's property rights will', in these cases, suffice to keep 
pollution in its proper place. But the situation is changed if individual 
polluters have widespread and individually minuscule effects. If someone 
imposes the equivalent of a twenty- cent cost on each person in the United 
States, it will not pay for any one person to sue him, despite the great total 
of the cost imposed. If many persons similarly impose tiny costs on each in- 
dividual, the total costs to an individual then may be significant. But 
since no single source significantly affects one individual, it still will not 
pay any individual to sue any individual polluter. It is ironic that pollu- 
tion is commonly held to indicate defects in the privateness of a system of 
private property, whereas the problem of pollution is that high transaction 
costs make it difficult to enforce the private property rights of the victims 
of pollution. One solution might be to allow group suits against polluters. 
Any lawyer or law firm may act for the general public and sue, being 
required to distribute a proportion of the amount collected to each member 
of the included public who claims it from them. (Since different people are 
differently affected by the same polluting acts, the lawyers might be 
required to distribute different amounts to those in different specified 
groups. ) The lawyers’ income would come from those who do not write in to 



Prohibition, Compensation, and Risk 81 

claim their due, and from earnings of the money of those who do not claim 
promptly. Seeing some receiving great income in this way, others would go 
into business as ‘public’s agents, ” charging a yearly fee to collect and turn 
over to their clients all the pollution payments to which they were entitled. 
Since such a scheme gives great advantage to a lawyer who acts fast, it 
insures that many would be alert to protect the interests of those polluted. 
Alternative schemes might be devised to allow several to sue simultaneously 
for distinct sets of persons in the public. It is true that these schemes place 
great weight on the court system, but they should be as manageable as the 
operation of any government bureaucracy in determining and distributing 
costs. * 

To arrive at an acceptable principle of compensation, we must 
delimit the class of actions covered by the claim. Some types of ac- 
tion are generally done, play an important role in people’s lives, 
and are not forbidden to a person without seriously disadvantaging 
him. One principle might run: when an action of this type is for- 
bidden to someone because it might cause harm to others and is 
especially dangerous when he does it, then those who forbid in 
order to gain increased security for themselves must compensate 
the person forbidden for the disadvantage they place him under. 


* The proposal I make here can, I think, be defended against the consider- 
ations adduced in Frank Michelman’s sophisticated presentation of a contrast- 
ing view in his “Pollution as a Tort,” an essay review of Guido Calabresi’s The 
Costs of Accidents, in Yale Law Journal, 80 (1917), pt. V, 666—683. 

I do not mean to put forth the above scheme as the solution to controlling 
pollution. Rather, I wish merely to suggest and make plausible the view that 
some institutional arrangement might be devised to solve the problem at a fell 
swoop, and to commend the task to those clever at such things. (J. H. Dales 
proposes, in Pollution, Property, and Prices, to sell transferable rights to pollute 
in specified amounts. This elegant proposal unfortunately involves central deci- 
sion as to the desirable total amount of pollution.) 

Popular discussions often run pollution problems together with that of con- 
serving natural resources. Again, the clearest examples of misdirected activity 
have occurred where there are no clear private property rights: on public lands 
denuded by timber companies and in oil fields under separately held pieces of 
land. To the extent that future people (or we later) will be willing to pay for the 
satisfaction of their desires, including trips through unspoiled forests and wil- 
derness land, it will be in the economic interests of some to conserve the neces- 
sary resources. See the discussion in Rothbard, Power and Market (Menlo Park, 
Calif.: Institute for Humane Studies, 1970), pp. 47—52, and in the references 
he cites. 



82 


State-of-Nature Theory 


This principle is meant to cover forbidding the epileptic to drive 
while excluding the cases of involuntary Russian roulette and the 
special manufacturing process. The idea is to focus on important 
activities done by almost all, though some do them more 
dangerously than others. Almost everyone drives a car, whereas 
playing Russian roulette or using an especially dangerous manufac- 
turing process is not a normal part of almost everyone’s life. 

Unfortunately this approach to the principle places a very great 
burden on the scheme used to classify actions. The fact that there 
is one description of a person’s action that distinguishes it from the 
acts of others does not classify it as unusual and so outside the 
sphere of application of the principle. Yet it would be too strong 
to say, on the other hand, that any action falling under some 
description which almost every other person also instantiates is 
thereby shown to be usual and to fall within the compass of the 
principle. For unusual activities also fall under some descriptions 
that cover actions people normally do. Playing Russian roulette is 
a more dangerous way of “having fun,” which others are allowed 
to do; and using the special manufacturing process is a more dan- 
gerous way of “earning a living.” Almost any two actions can be 
construed as the same or different, depending upon whether they 
fall into the same or different subclasses in the background clas- 
sification of actions. This possibility of diverse descriptions of ac- 
tions prevents easy application of the principle as stated. 

If these questions could be clarified satisfactorily, we might 
wish to extend the principle to cover some unusual actions. If using 
the dangerous process is the only way that person can earn a living 
(and if playing Russian roulette on another with a gun of 100,000 
chambers is the only way that person can have any enjoyment at 
all — I grant these are both extravagant suppositions), then perhaps 
this person should be compensated for the prohibition. By having 
the only way he can earn a living forbidden to him, he is disadvan- 
taged as compared to the normal situation, whereas someone is not 
disadvantaged relative to the normal situation by having his most 
profitable alternative forbidden to him. A disadvantage as com- 
pared to the normal situation differs from being made worse off 
than one otherwise would be. One might use a theory of disadvan- 
tage, if one had it, in order to formulate a “Principle of Compen- 
sation”: those who are disadvantaged by being forbidden to do ac- 



Prohibition, Compensation, and Risk 


83 


tions that only might harm others must be compensated for these 
disadvantages foisted upon them in order to provide security for 
the others. If people’s increased security from a contemplated pro- 
hibition would benefit them less than those prohibited would be 
disadvantaged, then potential prohibitors will be unable or unwill- 
ing to make sufficiently great compensatory payments; so the pro- 
hibition, as is proper in this case, will not be imposed. 

The principle of compensation covers the cases falling under 
our earlier statement which involved messy problems about clas- 
sifying actions. It does not avoid completely similar questions con- 
cerning the circumstances under which someone is especially dis- 
advantaged. But as they arise here, the questions are easier to 
handle. For example, is the manufacturer who is prevented from 
pursuing his best alternative (though having other profitable alter- 
natives) especially disadvantaged if everyone else may pursue their 
best alternatives, which happen not to be dangerous? Clearly not. 

The principle of compensation requires that people be compen- 
sated for having certain risky activities prohibited to them. It 
might be objected that either you have the right to forbid these 
people’s risky activities or you don’t. If you do, you needn’t com- 
pensate the people for doing to them what you have a right to do; 
and if you don’t, then rather than formulating a policy of compen- 
sating people for your unrightfol forbidding, you ought simply to 
stop it. In neither case does the appropriate course seem to be to 
forbid and then compensate. But the dilemma, “either you have a 
right to forbid it so you needn’t compensate, or you don’t have a 
right to forbid it so you should stop,” is too short. It may be that 
you do have a right to forbid an action but only provided you 
compensate those to whom it is forbidden. 

How can this be? Is this situation one of those discussed earlier, 
in which a border crossing is permitted provided that compensa- 
tion is paid? If so, there would be some boundary line that de- 
limits forbidding people to do certain risky acts, which it would 
be permissible to cross if the party trespassed upon were compen- 
sated. Even if so, since in the cases under discussion we can identify 
in advance the particular persons being forbidden, why are we not 
required instead to negotiate a contract with them whereby they 
agree not to do the risky act in question? Why wouldn’t we have 
to offer them an incentive, or hire them, or bribe them to refrain 



8 4 


State-of-Nature Theory 


from doing the act? In our earlier discussion of border crossing we 
noted the absence of any compelling theory of just price or com- 
pelling reason why all of the benefits of voluntary exchange should 
go to one of the parties. Which of the admissible points on the 
contract curve was to be selected, we said, was a question appropri- 
ately left to the parties involved. This consideration favored prior 
negotiation over posterior payment of full compensation. In the 
present subclass of cases, however, it does seem appropriate uni- 
formly to select one extremity of the contract curve. Unlike ex- 
changes in which both parties benefit and it is unclear how these 
benefits are to be divided, in negotiations over one party’s abstain- 
ing from an action that will or might endanger another person, all 
the first party need receive is full compensation. (The payment the 
first party could negotiate for abstaining, were he allowed to per- 
form the action, is not part of his loss due to the prohibition for 
which he must be compensated.) 


PRODUCTIVE EXCHANGE 

If I buy a good or service from you, I benefit from your activity; I 
am better off due to it, better off than if your activity wasn’t done 
or you didn’t exist at all. (Ignore the complication that someone 
once might sell a bona fide good to another person he generally 
harms.) Whereas if I pay you for not harming me, I gain nothing 
from you that I wouldn’t possess if either you didn’t exist at all or 
existed without having anything to do with me. (This comparison 
wouldn’t do if I deserved to be harmed by you.) Roughly, productive 
activities are those that make purchasers better off than if the seller 
had nothing at all to do with them. More precisely, this provides 
a necessary condition for an unproductive activity, but not a suf- 
ficient condition. If your next-door neighbor plans to erect a cer- 
tain structure on his land, which he has a right to do, you might 
be better off if he didn’t exist at all. (No one else would choose to 
erect that monstrosity.) Yet purchasing his abstention from pro- 
ceeding with his plans will be a productive exchange . 16 Suppose, 
however, that the neighbor has no desire to erect the structure on 



Prohibition, Compensation, and Risk 


85 


the land; he formulates his plan and informs you of it solely in 
order to sell you his abstention from it. Such an exchange would 
not be a productive one; it merely gives you relief from something 
that would not threaten if not for the possibility of an exchange to 
get relief from it. The point generalizes to the case where the 
neighbor's desire does not focus only upon you. He may formulate 
the plan and peddle his abstention around to several neighbors. 
Whoever purchases it will be “served” unproductively. That such 
exchanges are not productive ones, and do not benefit each party, 
is shown by the fact that if they were impossible or forceably 
prohibited so that everyone knew they couldn’t be done, one of the 
parties to the potential exchange would be no worse off. A strange 
kind of productive exchange it would be whose forbidding leaves 
one party no worse off! (The party who does not give up anything 
for the abstention, or need not because the neighbor has no other 
motive to proceed with the action, is left better off.) Though peo- 
ple value a blackmailer’s silence, and pay for it, his being silent is 
not a productive activity. His victims would be as well off if the 
blackmailer did not exist at all, and so wasn’t threatening them.* 
And they would be no worse off if the exchange were known to be 
absolutely impossible. On the view we take here, a seller of such 
silence could legitimately charge only for what he forgoes by si- 
lence. What he forgoes does not include the payment he could 
have received to abstain from revealing his information, though it 
does include the payments others would make to him to reveal the 
information. So someone writing a book, whose research comes 
across information about another person which would help sales if 
included in the book, may charge another who desires that this in- 
formation be kept secret (including the person who is the subject 
of the information) for refraining from including the information 
in the book. He may charge an amount of money equal to his ex- 
pected difference in royalties between the book containing this in- 
formation and the book without it; he may not charge the best 

* But if he didn’t exist, mightn’t another have stumbled on the unique piece 
of information and asked a higher price for silence? If this would have occurred, 
isn’t the victim better off because his actual blackmailer exists? To state the 
point exactly in order to exclude such complications is not worth the effort it 
would require. 



86 


State-of-Nature Theory 


price he could get from the purchaser of his silence.* Protective 
services are productive and benefit their recipient whereas the 
“protection racket” is not productive. Being sold the racketeers’ 
mere abstention from harming you makes your situation no better 
than if they had nothing to do with you at all. 

Our earlier discussion of dividing the benefits of voluntary 
exchange, thus, should be narrowed so as to apply only to those 
exchanges where both parties do benefit in the sense of being the 
recipients of productive activities. Where one of the parties does 
not so benefit and is unproductively “served,” it is fair that he 
merely barely compensates the other, if any compensation is due 
the other party at all. What of those cases where only the first con- 
dition of unproductive exchange is satisfied, not the second: X is 
no better off as a result of the exchange than if Y didn’t exist at 
all, but Y does have some motive other than selling abstention. If 
from Y’s abstention from an activity X gains only a lessened prob- 
ability of having his own border crossed (a crossing whose inten- 
tional performance is prohibited), then Y need be compensated 
only for the disadvantages imposed upon him by the prohibition of 
only those activities whose risk is serious enough to justify prohi- 
bition in this manner. 

We have rejected the view that the prohibition of risky activi- 
ties is illegitimate, that through prior agreements and open nego- 
tiations people must be induced to agree voluntarily to refrain 
from the activities. But we should not construe our case merely as 
compensation for crossing a border that protects another’s risky ac- 
tion, with the requirement of prior negotiation obviated by the 


* A writer, or other person, who delights in revealing secrets, may charge dif- 
ferently. This consideration does not help the racketeer discussed below, even if 
he is sadistic and enjoys his work. The activity he threatens is excluded by 
moral constraints and is prohibited independently of whether it, or abstaining 
from it, is charged for. The example of the writer is taken from footnote 34 of 
my essay, “Coercion,” in Philosophy, Science, and Method: Essays in Honor of Ernest 
Nagel, ed. S. Morgenbesser, P. Suppes, and M. White (New York: St. Martin’s 
Press 1969), pp. 440—472. Contrast our view of blackmail with the following, 
which sees it as on a par with any other economic transaction: “Blackmail 
would not be illegal in the free society. For blackmail is the receipt of money in 
exchange for the service of not publicizing certain information about the other 
person. No violence or threat of violence to person or property is involved.” 
Murray N. Rothbard, Man, Economy, and State, vol. 1, p. 443, n. 49. 



Prohibition, Compensation, and Risk 


87 


special nature of the case (it doesn’t involve any productive 
exchange). For this does not explain why all are not returned to 
the indifference curve they would occupy were it not for the prohi- 
bition; only those disadvantaged by a prohibition are to be compen- 
sated, and they are to be compensated only for their disadvantages. 
If a prohibition of risky acts had two separate effects on someone, 
the first making him worse off though not disadvantaged as com- 
pared to others and the second disadvantaging him, the principle 
of compensation would require compensation to be paid only for 
the second. Unlike an ordinary border crossing, the compensation 
in these cases need not raise the person to the position he was 
in before he was interfered with. In order to view the compensa- 
tion under the principle of compensation as ordinary compensation 
for a border crossing, one might try to redefine or relocate the border 
so that it is crossed only when someone is disadvantaged. But it 
is more perspicuous not to distort our view of this compensation 
situation by assimilating it to another one. 

That it is not to be assimilated to the border-crossing sort of 
compensation situation does not, of course, foreclose deriving the 
principle of compensation from deeper principles. For our pur- 
poses in this essay we need not do this; nor need we state the prin- 
ciple exactly. We need only claim the correctness of some prin- 
ciples, such as the principle of compensation, requiring those 
imposing a prohibition on risky activities to compensate those 
disadvantaged through having these risky activities prohibited to 
them. I am not completely comfortable presenting and later using 
a principle whose details have not been worked out fully, even 
though the undeveloped aspects of the principle do not appear to 
be relevant to the issues upon which we shall wield it. With some 
justice, I think, I could claim that it is all right as a beginning to 
leave a principle in a somewhat fuzzy state; the primary question 
is whether something like it will do. This claim, however, would 
meet a frosty reception from those many proponents of another 
principle scrutinized in the next chapter, if they knew how much 
harder I shall be on their principle than I am here on mine. For- 
tunately, they don’t know that yet. 



CHAPTER 

5 


The State 


A 


PROHIBITING PRIVATE ENFORCEMENT 
OF JUSTICE 


. N independent might be prohibited from privately exact- 
ing justice because his procedure is known to be too risky and 
dangerous — that is, it involves a higher risk (than another proce- 
dure) of punishing an innocent person or overpunishing a guilty 
one — or because his procedure isn’t known not to be risky. (His 
procedure would exhibit another mode of unreliability if its 
chances were much greater of not punishing a guilty person, but 
this would not be a reason for prohibiting his private enforcement.) 

Let us consider these in turn. If the independent’s procedure is 
very unreliable and imposes high risk on others (perhaps he con- 
sults tea leaves), then if he does it frequently, he may make all 
fearful, even those not his victims. Anyone, acting in self-defense, 
may stop him from engaging in his high-risk activity. But surely 
the independent may be stopped from using a very unreliable 
procedure, even if he is not a constant menace. If it is known that 
the independent will enforce his own rights by his very unreliable 
procedure only once every ten years, this will not create general 
fear and apprehension in the society. The ground for prohibiting 
his widely intermittent use of his procedure is not, therefore, to 


88 



The State 89 

avoid any widespread uncompensated apprehension and fear which 
otherwise would exist. 

If there were many independents who were all liable to punish 
wrongly, the probabilities would add up to create a dangerous situ- 
ation for all. Then, others would be entitled to group together and 
prohibit the totality of such activities. But how would this prohibi- 
tion work? Would they prohibit each of the individually non-fear- 
creating activities? Within a state of nature by what procedure can 
they pick and choose which of the totality is to continue, and what 
would give them the right to do this? No protective association, 
however dominant, would have this right. For the legitimate pow- 
ers of a protective association are merely the sum of the individual 
rights that its members or clients transfer to the association. No 
new rights and powers arise; each right of the association is de- 
composable without residue into those individual rights held by 
distinct individuals acting alone in a state of nature. A combina- 
tion of individuals may have the right to do some action C, which 
no individual alone had the right to do, if C is identical to D and 
E, and persons who individually have the right to do D and the 
right to do E combine. If some rights of individuals were of the 
form “You have the right to do A provided 51 percent or 85 per- 
cent or whatever of the others agree you may,” then a combination 
of individuals would have the right to do A, even though none 
separately had this right. But no individual’s rights are of this 
form. No person or group is entitled to pick who in the totality 
will be allowed to continue. All the independents might group 
together and decide this. They might, for example, use some ran- 
dom procedure to allocate a number of (sellable?) rights to con- 
tinue private enforcement so as to reduce the total danger to a 
point below the threshold. The difficulty is that, if a large number 
of independents do this, it will be in the interests of an individual 
to abstain from this arrangement. It will be in his interests to con- 
tinue his risky activities as he chooses, while the others mutually 
limit theirs so as to bring the totality of acts including his to 
below the danger level. For the others probably would limit them- 
selves some distance away from the danger boundary, leaving him 
room to squeeze in. Even were the others to rest adjacent to the 
line of danger so that his activities would bring the totality across 
it, on which grounds could his activities be picked out as the ones 



9 ° 


State-of-Nature Theory 


to prohibit? Similarly, it will be in the interests of any individual 
to refrain from otherwise unanimous agreements in the state of na- 
ture: for example, the agreement to set up a state. Anything an in- 
dividual can gain by such a unanimous agreement he can gain 
through separate bilateral agreements. Any contract which really 
needs almost unanimity, any contract which is essentially joint, 
will serve its purpose whether or not a given individual partici- 
pates; so it will be in his interests not to bind himself to participate. 


“THE PRINCIPLE OF FAIRNESS’’ 

A principle suggested by Herbert Hart, which (following John 
Rawls) we shall call the principle of fairness, would be of service 
here if it were adequate. This principle holds that when a number 
of persons engage in a just, mutually advantageous, cooperative 
venture according to rules and thus restrain their liberty in ways 
necessary to yield advantages for all, those who have submitted to 
these restrictions have a right to similar acquiescence on the part 
of those who have benefited from their submission . 1 Acceptance of 
benefits (even when this is not a giving of express or tacit under- 
taking to cooperate) is enough, according to this principle, to bind 
one. If one adds to the principle of fairness the claim that the 
others to whom the obligations are owed or their agents may en- 
force the obligations arising under this principle (including the 
obligation to limit one’s actions), then groups of people in a state 
of nature who agree to a procedure to pick those to engage in cer- 
tain acts will have legitimate rights to prohibit “free riders.” Such 
a right may be crucial to the viability of such agreements. We 
should scrutinize such a powerful right very carefully, especially as 
it seems to make unanimous consent to coercive government in a 
state of nature unnecessary! Yet a further reason to examine it is its 
plausibility as a counterexample to my claim that no new rights 
“emerge” at the group level, that individuals in combination can- 
not create new rights which are not the sum of preexisting ones. A 
right to enforce others’ obligation to limit their conduct in speci- 
fied ways might stem from some special feature of the obligation 
or might be thought to follow from some general principle that all 



The State 


9i 


obligations owed to others may be enforced. In the absence of 
argument for the special enforcement-justifying nature of the ob- 
ligation supposedly arising under the principle of fairness, I shall 
consider first the principle of the enforceability of all obligations 
and then turn to the adequacy of the principle of fairness itself. If 
either of these principles is rejected, the right to enforce the coop- 
eration of others in these situations totters. I shall argue that both 
of these principles must be rejected. 

Herbert Hart’s argument for the existence of a natural right 2 
depends upon particularizing the principle of the enforceability of 
all obligations: someone’s being under a special obligation to you 
to do A (which might have arisen, for example, by their promising 
to you that they would do A) gives you, not only the right that 
they do A , but also the right to force them to do A . Only against 
a background in which people may not force you to do A or other 
actions you may promise to do can we understand, says Hart, the 
point and purpose of special obligations. Since special obligations do 
have a point and purpose, Hart continues, there is a natural right 
not to be forced to do something unless certain specified condi- 
tions pertain; this natural right is built into the background 
against which special obligations exist. 

This well-known argument of Hart’s is puzzling. I may release 
someone from an obligation not to force me to do A. (“I now 
release you from the obligation not to force me to do A. You now 
are free to force me to do A.”) Yet so releasing them does not 
create in me an obligation to them to do A . Since Hart supposes 
that my being under an obligation to someone to do A gives him 
(entails that he has) the right to force me to do A, and since we 
have seen the converse does not hold, we may consider that com- 
ponent of being under an obligation to someone to do something 
over and above his having the right to force you to do it. (May we 
suppose there is this distinguishable component without facing the 
charge of “logical atomism”?) An alternative view which rejects 
Hart’s inclusion of the right to force in the notion of being owed 
an obligation might hold that this additional component is the 
whole of the content of being obligated to someone to do some- 
thing. If I don’t do it, then (all things being equal) I’m doing 
something wrong; control over the situation is in his hands; he has 
the power to release me from the obligation unless he’s promised 



92 


State-of-Nature Theory 


to someone else that he won’t, and so on. Perhaps all this looks 
too ephemeral without the additional presence of rights of enforce- 
ment. Yet rights of enforcement are themselves merely rights; that 
is, permissions to do something and obligations on others not to 
interfere. True, one has the right to enforce these further obliga- 
tions, but it is not clear that including rights of enforcing really 
shores up the whole structure if one assumes it to be insubstantial 
to begin with. Perhaps one must merely take the moral realm 
seriously and think one component amounts to something even 
without a connection to enforcement. (Of course, this is not to say 
that this component never is connected with enforcement!) On this 
view, we can explain the point of obligations without bringing 
in rights of enforcement and hence without supposing a general 
background of obligation not to force from which this stands out. 
(Of course, even though Hart’s argument does not demonstrate 
the existence of such an obligation not to force, it may exist 
nevertheless.) 

Apart from these general considerations against the principle of 
the enforceability of all special obligations, puzzle cases can be 
produced. For example, if I promise to you that I will not murder 
someone, this does not give you the right to force me not to, for 
you already have this right, though it does create a particular 
obligation to you. Or, if I cautiously insist that you first promise to 
me that you won’t force me to do A before I will make my prom- 
ise to you to do A, and I do receive this promise from you first, it 
would be implausible to say that in promising I give you the right 
to force me to do A . (Though consider the situation which results 
if I am so foolish as to release you unilaterally from your promise 
to me.) 

If there were cogency to Hart’s claim that only against a back- 
ground of required nonforcing can we understand the point of 
special rights, then there would seem to be equal cogency to the 
claim that only against a background of permitted forcing can we 
understand the point of general rights. For according to Hart, a 
person has a general right to do A if and only if for all persons P 
and Q, Q may not interfere with P’s doing A or force him not to 
do A, unless P has acted to give Q a special right to do this. But 
not every act can be substituted for “A”; people have general 
rights to do only particular types of action. So, one might argue, 



The State 


93 


if there is to be a point to having general rights, to having rights 
to do a particular type of act A, to other’s being under an obliga- 
tion not to force you not to do A, then it must be against a con- 
trasting background, in which there is no obligation on people to 
refrain from forcing you to do, or not to do, things, that is, 
against a background in which, for actions generally, people do not 
have a general right to do them. If Hart can argue to a presump- 
tion against forcing from there being a point to particular rights, 
then it seems he can equally well argue to the absence of such a 
presumption from there being a point to general rights. 3 

An argument for an enforceable obligation has two stages: the 
first leads to the existence of the obligation, and the second, to its 
enforceability. Having disposed of the second stage (at least insofar 
as it is supposed generally to follow from the first), let us turn to 
the supposed obligation to cooperate in the joint decisions of 
others to limit their activities. The principle of fairness, as we 
stated it following Hart and Rawls, is objectionable and unaccept- 
able. Suppose some of the people in your neighborhood (there are 
364 other adults) have found a public address system and decide to 
institute a system of public entertainment. They post a list of 
names, one for each day, yours among them. On his assigned day 
(one can easily switch days) a person is to run the public address 
system, play records over it, give news bulletins, tell amusing 
stories he has heard, and so on. After 138 days on which each per- 
son has done his part, your day arrives. Are you obligated to take 
your turn? You have benefited from it, occasionally opening your 
window to listen, enjoying some music or chuckling at someone’s 
funny story. The other people have put themselves out. But must 
you answer the call when it is your turn to do so? As it stands, 
surely not. Though you benefit from the arrangement, you may 
know all along that 364 days of entertainment supplied by others 
will not be worth your giving up one day. You would rather not 
have any of it and not give up a day than have it all and spend one 
of your days at it. Given these preferences, how can it be that you 
are required to participate when your scheduled time comes? It 
would be nice to have philosophy readings on the radio to which 
one could tune in at any time, perhaps late at night when tired. 
But it may not be nice enough for you to want to give up one 
whole day of your own as a reader on the program. Whatever you 



94 


State-of-Nature Theory 


want, can others create an obligation for you to do so by going 
ahead and starting the program themselves? In this case you can 
choose to forgo the benefit by not turning on the radio; in other 
cases the benefits may be unavoidable. If each day a different per- 
son on your street sweeps the entire street, must you do so when 
your time comes? Even if you don’t care that much about a clean 
street? Must you imagine dirt as you traverse the street, so as not 
to benefit as a free rider? Must you refrain from turning on the 
radio to hear the philosophy readings? Must you mow your front 
lawn as often as your neighbors mow theirs? 

At the very least one wants to build into the principle of 
fairness the condition that the benefits to a person from the actions 
of the others are greater than the costs to him of doing his share. 
How are we to imagine this? Is the condition satisfied if you do 
enjoy the daily broadcasts over the PA system in your neigh- 
borhood but would prefer a day off hiking, rather than hearing 
these broadcasts all year? For you to be obligated to give up your 
day to broadcast mustn’t it be true, at least, that there is nothing 
you could do with a day (with that day, with the increment in any 
other day by shifting some activities to that day) which you would 
prefer to hearing broadcasts for the year? If the only way to get the 
broadcasts was to spend the day participating in the arrangement, 
in order for the condition that the benefits outweigh the costs to 
be satisfied, you would have to be willing to spend it on the 
broadcasts rather than to gain any other available thing. 

If the principle of fairness were modified so as to contain this 
very strong condition, it still would be objectionable. The benefits 
might only barely be worth the costs to you of doing your share, 
yet others might benefit from this institution much more than you 
do; they all treasure listening to the public broadcasts. As the per- 
son least benefited by the practice, are you obligated to do an 
equal amount for it? Or perhaps you would prefer that all co- 
operated in another venture, limiting their conduct and making sac- 
rifices for it. It is true, given that they are not following your plan 
(and thus limiting what other options are available to you), that 
the benefits of their venture are worth to you the costs of your co- 
operation. However, you do not wish to cooperate, as part of your 
plan to focus their attention on your alternative proposal which 
they have ignored or not given, in your view at least, its proper 



The State 


95 


due. (You want them, for example, to read the Talmud on the 
radio instead of the philosophy they are reading.) By lending the 
institution (their institution) the support of your cooperating in it, 
you will only make it harder to change or alter . 4 

On the face of it, enforcing the principle of fairness is objec- 
tionable. You may not decide to give me something, for example a 
book, and then grab money from me to pay for it, even if I have 
nothing better to spend the money on. You have, if anything, 
even less reason to demand payment if your activity that gives me 
the book also benefits you; suppose that your best way of getting 
exercise is by throwing books into people’s houses, or that some 
other activity of yours thrusts books into people’s houses as an un- 
avoidable side effect. Nor are things changed if your inability to 
collect money or payments for the books which unavoidably spill 
over into others’ houses makes it inadvisable or too expensive for 
you to carry on the activity with this side effect. One cannot, 
whatever one’s purposes, just act so as to give people benefits and 
then demand (or seize) payment. Nor can a group of persons do 
this. If you may not charge and collect for benefits you bestow 
without prior agreement, you certainly may not do so for benefits 
whose bestowal costs you nothing, and most certainly people need 
not repay you for costless-to-provide benefits which yet others 
provided them. So the fact that we partially are “social products” 
in that we benefit from current patterns and forms created by the 
multitudinous actions of a long string of long-forgotten people, 
forms which include institutions, ways of doing things, and lan- 
guage (whose social nature may involve our current use depending 
upon Wittgensteinian matching of the speech of others), does not 
create in us a general floating debt which the current society can 
collect and use as it will. 

Perhaps a modified principle of fairness can be stated which 
would be free from these and similar difficulties. What seems cer- 
tain is that any such principle, if possible, would be so complex 
and involuted that one could not combine it with a special princi- 
ple legitimating enforcement within a state of nature of the obliga- 
tions that have arisen under it. Hence, even if the principle could 
be formulated so that it was no longer open to objection, it would 
not serve to obviate the need for other persons’ consenting to cooper- 
ate and limit their own activities. 



96 


State-of -Nature Theory 


PROCEDURAL RIGHTS 

Let us return to our independent. Apart from other nonindepen- 
dents’ fear (perhaps they will not be so worried), may not the per- 
son about to be punished defend himself? Must he allow the 
punishment to take place, collecting compensation afterwards if he 
can show that it was unjust? But show to whom? If he knows he’s 
innocent, may he demand compensation immediately and enforce 
his rights to collect it? And so on. The notions of procedural 
rights, public demonstration of guilt, and the like, have a very 
unclear status within state-of-nature theory. 

It might be said that each person has a right to have his guilt 
determined by the least dangerous of the known procedures for as- 
certaining guilt, that is, by the one having the lowest probability 
of finding an innocent person guilty. There are well-known 
maxims of the following form: better m guilty persons go free than 
n innocent persons be punished. For each n, each maxim will 
countenance an upper limit to the ratio min. It will say: better m, 
but not better m + i . (A system may pick differing upper limits for 
different crimes.) On the greatly implausible assumption that we 
know each system of procedures’ precise probability of finding an 
innocent person guilty , 5 and a guilty person innocent, we will opt 
for those procedures whose long-run ratio of the two kinds of 
errors comes closest, from below, to the highest ratio we find ac- 
ceptable. It is far from obvious where to set the ratio. To say it is 
better that any number of guilty go free rather than that one in- 
nocent person be punished presumably would require not having 
any system of punishment at all. For any system we can devise 
which sometimes does actually punish someone will involve some 
appreciable risk of punishing an innocent person, and it almost cer- 
tainly will do so as it operates on large numbers of people. And 
any system S can be transformed into one having a lower probabil- 
ity of punishing an innocent person, for example, by conjoining to 
it a roulette procedure whereby the probability is only . i that any- 
one found guilty by S actually gets punished. (This procedure is 
iterative.) 

If a person objects that the independent’s procedure yields too 
high a probability of an innocent person’s being punished, how 



The State 


97 


can it be determined what probabilities are too high? We can 
imagine that each individual goes through the following reason- 
ing: The greater the procedural safeguards, the less my chances of 
getting unjustly convicted, and also the greater the chances that a 
guilty person goes free; hence the less effectively the system deters 
crime and so the greater my chances of being a victim of a crime. 
That system is most effective which minimizes the expected value 
of unearned harm to me, either through my being unjustly pun- 
ished or through my being a victim of a crime. If we simplify 
greatly by assuming that penalties and victimization costs balance 
out, one would want the safeguards at that most stringent point 
where any lowering of them would increase one’s probability of 
being unjustly punished more than it would lower (through added 
deterrence) one’s vulnerability to being victimized by a crime; and 
where any increasing of the safeguards would increase one’s proba- 
bility of being victimized by a crime (through lessened deterrence) 
more than it would lessen one’s probability of being punished 
though innocent. Since utilities differ among persons, there is no 
reason to expect individuals who make such an expected value 
calculation to converge upon the identical set of procedures. Fur- 
thermore, some persons may think it important in itself that 
guilty people be punished and may be willing to run some in- 
creased risks of being punished themselves in order to accomplish 
this. These people will consider it more of a drawback, the greater 
the probability a procedure gives guilty people of going un- 
punished, and they will incorporate this in their calculations, 
apart from its effects on deterrence. It is, to say the least, very 
doubtful that any provision of the law of nature will (and will be 
known to) settle the question of how much weight is to be given 
to such considerations, or will reconcile people’s different assess- 
ments of the seriousness of being punished when innocent as com- 
pared to being victimized by a crime (even if both involve the 
same physical thing happening to them). With the best will in the 
world, individuals will favor differing procedures yielding differ- 
ing probabilities of an innocent person’s being punished. 

One could not, it seems, permissibly prohibit someone from 
using a procedure solely because it yields a marginally higher 
probability of punishing an innocent person than does the proce- 
dure you deem optimal. After all, your favorite procedure also will 



98 


State-of-Nature Theory 


stand in this relation to that of someone else. Nor are matters 
changed by the fact that many other persons use your procedure. It 
seems that persons in a state of nature must tolerate (that is, not 
forbid) the use of procedures in the “neighborhood” of their own; 
but it seems they may forbid the use of far more risky procedures. 
An acute problem is presented if two groups each believe their 
own procedures to be reliable while believing that of the other 
group to be very dangerous. No procedure to resolve their disagree- 
ment seems likely to work; and presenting the nonprocedural prin- 
ciple that the group which is right should triumph (and the other 
should give in to it) seems unlikely to produce peace when each 
group, firmly believing itself to be the one that is right, acts on 
the principle. 

When sincere and good persons differ, we are prone to think 
they must accept some procedure to decide their differences, some 
procedure they both agree to be reliable or fair. Here we see the 
possibility that this disagreement may extend all the way up the 
ladder of procedures. Also, one sometimes will refuse to let issues 
stay settled by the adverse decision of such a procedure, specifi- 
cally when the wrong decision is worse even than the disruption 
and costs (including fighting) of refusing to accept it, when the 
wrong decision is worse than conflict with those on the other side. 
It is dismaying to contemplate situations where both of the op- 
posed parties feel that conflict is preferable to an adverse decision 
by any procedure. Each views the situation as one in which he who 
is right must act, and the other should give in. It will be of little 
avail for a neutral party to say to both, “Look, you both think you’re 
right, so on that principle, as you will apply it, you’ll fight. 
Therefore you must agree to some procedure to decide the mat- 
ter.” For they each believe that conflict is better than losing the 
issue.* And one of them may be right in this. Shouldn’t he engage 


* Must their calculation about which is better include their chances of suc- 
cess? There is some temptation to define this area of conflict as one where such 
chances of wrong are for certain purposes thought to be as bad as the wrong for 
sure. A theory of how probability interacts with the moral weight of wrongs is 
sorely needed. 

In treating the question as one of whether the benefits of conflict outweigh 
its costs, the text seriously oversimplifies the issue. Instead of a simple cost- 
benefit principle, the correct principle requires for an act to be morally permis- 



The State 


99 


in the conflict? Shouldn’t he engage in the conflict? (True, both of 
them will think the one is themselves.) One might try to avoid 
these painful issues by a commitment to procedures, come what 
may. (May one possible result of applying the procedures be that 
they themselves are rejected?) Some view the state as such a device 
for shifting the ultimate burden of moral decision, so that there 
never comes to be that sort of conflict among individuals. But 
what sort of individual could so abdicate? Who could turn every 
decision over to an external procedure, accepting whatever results 
come? The possibility of such conflict is part of the human condi- 
tion. Though this problem in the state of nature is an unavoidable 
one, given suitable institutional elaboration it need be no more 
pressing in the state of nature than under a state, where it also 
exists . 6 

The issue of which decisions can be left to an external binding 
procedure connects with the interesting question of what moral 
obligations someone is under who is being punished for a crime of 
which he knows himself to be innocent. The judicial system (con- 
taining no procedural unfairness, let us suppose) has sentenced 
him to life imprisonment, or death. May he escape? May he harm 
another in order to escape? These questions differ from the one of 


sible, not merely that its moral benefits outweigh its moral costs, but that there 
is no other alternative action available with less moral cost, such that the addi- 
tional moral cost of the contemplated action over the alternative outweighs its 
additional moral benefit. (For a detailed discussion of these issues see my “Moral 
Complications and Moral Structures,” Natural Law Forum, 1968, pp. 1—50, 
especially the discussion of Principle VII.) One would be in a position to ad- 
vance the discussion of many issues if one combined such a principle with a 
theory of the moral weight of harms or wrongs with certain specified probabil- 
ities, to get an explicitly probabilified version of this principle. I mention only 
one application here that might not spring to mind. It is often assumed that the 
only pacifist position which is a moral position absolutely forbids violent action. 
Any pacifist position that considers the effectiveness of pacifist techniques is 
labeled tactical rather than moral. But if a pacifist holds that because certain 
techniques of significant effectiveness are available (civilian resistance, non- 
violent defense, satyagraha, and so on) it is morally wrong to wage or prepare for 
war, he is putting forth a comprehensible position that is a moral one, and 
which does require appeal to facts about the effectiveness of pacifist techniques. 
Given the lack of certainty about the effects of various actions (wars, pacifist 
techniques) the principle to govern the moral discussion of whether nonpacifist 
actions are morally permitted is a probabilified version of the principle (Princi- 
ple VII) described briefly above. 




IOO 


State-of- -Nature Theory 


whether someone wrongfully attacking (or participating in the at- 
tack of) another may claim self-defense as justifying his killing the 
other when the other, in self-defense, acts so as to endanger his 
own attacker’s life. Here the answer is, “No.” The attacker should 
not be attacking in the first place, nor does someone else’s threat- 
ening him with death unless he does attack make it permissible for 
him to do so. His job is to get out of that situation; if he fails to 
do so he is at a moral disadvantage. Soldiers who know their 
country is waging an aggressive war and who are manning anti- 
aircraft guns in defense of a military emplacement may not in 
self-defense fire upon the planes of the attacked nation which is 
acting in self-defense, even though the planes are over their heads 
and are about to bomb them. It is a soldier’s responsibility to deter- 
mine if his side’s cause is just; if he finds the issue tangled, 
unclear, or confusing, he may not shift the responsibility to his 
leaders, who will certainly tell him their cause is just. The selec- 
tive conscientious objector may be right in his claim that he has a 
moral duty not to fight; and if he is, may not another acquiescent 
soldier be punished for doing what it was his moral duty not to 
do? Thus we return to the point that some bucks stop with each of 
us; and we reject the morally elitist view that some soldiers cannot 
be expected to think for themselves. (They are certainly not en- 
couraged to think for themselves by the practice of absolving them 
of all responsibility for their actions within the rules of war.) Nor 
do we see why the political realm is special. Why, precisely, is one 
specially absolved of responsibility for actions when these are per- 
formed jointly with others from political motives under the direc- 
tion or orders of political leaders? 7 

We thus far have supposed that you know that another’s proce- 
dure of justice differs from your own for the worse. Suppose now 
that you have no reliable knowledge about another’s procedure of 
justice. May you stop him in self-defense and may your protective 
agency act for you, solely because you or it does not know whether 
his procedure is reliable? Do you have the right to have your guilt 
or innocence, and punishment, determined by a system known to 
be reliable and fair? Known to whom? Those wielding it may 
know it to be reliable and fair. Do you have a right to have your 
guilt or innocence, and punishment, determined by a system you 
know to be reliable and fair? Are someone’s rights violated if he 



The State 


IOI 


thinks that only the use of tea leaves is reliable or if he is incapable 
of concentrating on the description of the system others use so that 
he doesn’t know whether it’s reliable, and so on? One may think 
of the state as the authoritative settler of doubts about reliability 
and fairness. But of course there is no guarantee that it will settle 
them (the president of Yale didn’t think Black Panthers could get 
a fair trial), and there is no reason to suppose it will manage to do 
so more effectively than another scheme. The natural-rights tra- 
dition offers little guidance on precisely what one’s procedural 
rights are in a state of nature, on how principles specifying how 
one is to act have knowledge built into their various clauses, and 
so on. Yet persons within this tradition do not hold that there are 
no procedural rights; that is, that one may not defend oneself 
against being handled by unreliable or unfair procedures. 


HOW MAY THE DOMINANT AGENCY ACT? 

What then may a dominant protective association forbid other in- 
dividuals to do? The dominant protective association may reserve 
for itself the right to judge any procedure of justice to be applied 
to its clients. It may announce, and act on the announcement, that 
it will punish anyone who uses on one of its clients a procedure 
that it finds to be unreliable or unfair. It will punish anyone who 
uses on one of its clients a procedure that it already knows to be 
unreliable or unfair, and it will defend its clients against the 
application of such a procedure. May it announce that it will 
punish anyone who uses on one of its clients a procedure that it 
has not, at the time of punishment, already approved as reliable 
and fair? May it set itself up as having to pass, in advance, on any 
procedure to be used on one of its clients, so that anyone using on 
one of its clients any procedure that has not already received the 
protective association’s seal of approval will be punished? Clearly, 
individuals themselves do not have this right. To say that an indi- 
vidual may punish anyone who applies to him a procedure of jus- 
tice that has not met his approval would be to say that a criminal 
who refuses to approve anyone’s procedure of justice could legiti- 
mately punish anyone who attempted to punish him. It might be 



102 


State-of-Nature Theory 


thought that a protective association legitimately can do this, for 
it would not be partial to its clients in this manner. But there is 
no guarantee of this impartiality. Nor have we seen any way that 
such a new right might arise from the combining of individuals’ 
preexisting rights. We must conclude that protective associations 
do not have this right, including the sole dominant one. 

Every individual does have the right that information sufficient 
to show that a procedure of justice about to be applied to him is 
reliable and fair (or no less so than other procedures in use) be 
made publicly available or made available to him. He has the right 
to be shown that he is being handled by some reliable and fair sys- 
tem. In the absence of such a showing he may defend himself and 
resist the imposition of the relatively unknown system. When the 
information is made publicly available or made available to him, 
he is in a position to know about the reliability and fairness of the 
procedure . 8 He examines this information, and if he finds the sys- 
tem within the bounds of reliability and fairness he must submit 
to it; finding it unreliable and unfair he may resist. His submis- 
sion means that he refrains from punishing another for using this 
system. He may resist the imposition of its particular decision 
though, on the grounds that he is innocent. If he chooses not to, 
he need not participate in the process whereby the system deter- 
mines his guilt or innocence. Since it has not yet been established 
that he is guilty, he may not be aggressed against and forced to 
participate. However, prudence might suggest to him that his 
chances of being found innocent are increased if he cooperates in 
the offering of some defense. 

The principle is that a person may resist, in self-defense, if 
others try to apply to him an unreliable or unfair procedure of jus- 
tice. In applying this principle, an individual will resist those sys- 
tems which after all conscientious consideration he finds to be un- 
fair or unreliable. An individual may empower his protective 
agency to exercise for him his rights to resist the imposition of any 
procedure which has not made its reliability and fairness known, 
and to resist any procedure that is unfair or unreliable. In Chap- 
ter 2 we described briefly the processes that would lead to the 
dominance of one protective association in a given area, or to a 
dominant federation of protective associations using rules to peace- 
fully adjudicate disputes among themselves. This dominant pro- 



The State 


103 


tective association will prohibit anyone from applying to its 
members any procedure about which insufficient information is 
available as to its reliability and fairness. It also will prohibit any- 
one from applying to its members an unreliable or unfair proce- 
dure; which means, since they are applying the principle and have 
the muscle to do so, that others are prohibited from applying to 
the protective association’s members any procedure the protective 
association deems unfair or unreliable. Leaving aside the chances of 
evading the system’s operation, anyone violating this prohibition 
will be punished. The protective association will publish a list of 
those procedures it deems fair and reliable (and perhaps of those it 
deems otherwise); and it would take a brave soul indeed to proceed 
to apply a known procedure not yet on its approved list. Since an 
association’s clients will expect it to do all it can to discourage 
unreliable procedures, the protective association will keep its list 
up-to-date, covering all publicly known procedures. 

It might be claimed that our assumption that procedural rights 
exist makes our argument too easy. Does a person who did violate 
another’s rights himself have a right that this fact be determined 
by a fair and reliable procedure? It is true that an unreliable 
procedure will too often find an innocent person guilty. But does 
applying such an unreliable procedure to a guilty person violate any 
right of his? May he, in self-defense, resist the imposition of such 
a procedure upon himself? But what would he be defending him- 
self against? Too high a probability of a punishment he deserves? 
These questions are important ones for our argument. If a guilty 
person may not defend himself against such procedures and also 
may not punish someone else for using them upon him, then may 
his protective agency defend him against the procedures or punish 
someone afterwards for having used them upon him, indepen- 
dently of whether or not (and therefore even if) he turns out to be 
guilty? One would have thought the agency’s only rights of action 
are those its clients transfer to it. But if a guilty client has no such 
right, he cannot transfer it to the agency. 

The agency does not, of course, know that its client is guilty, 
whereas the client himself does know (let us suppose) of his own 
guilt. But does this difference in knowledge make the requisite 
difference? Isn’t the ignorant agency required to investigate the 
question of its client’s guilt, instead of proceeding on the assump- 



104 


State-of-Nature Theory 


tion of his innocence? The difference in epistemic situation be- 
tween agency and client can make the following difference. The 
agency may under some circumstances defend its client against the 
imposition of a penalty while promptly proceeding to investigate 
the question of his guilt. If the agency knows that the punishing 
party has used a reliable procedure, it accepts its verdict of guilty, 
and it cannot intervene on the assumption that its client is, or well 
might be, innocent. If the agency deems the procedure unreliable 
or doesn’t know how reliable it is, it need not presume its client 
guilty, and it may investigate the matter itself. If upon investiga- 
tion it determines that its client is guilty, it allows him to be 
punished. This protection of its client against the actual imposi- 
tion of the penalty is relatively straightforward, except for the 
question of whether the agency must compensate the prospective 
punishers for any costs imposed upon them by having to delay 
while the protective agency determines to its satisfaction its own 
client’s guilt. It would seem that the protective agency does have 
to pay compensation to users of relatively unreliable procedures for 
any disadvantages caused by the enforced delay; and to the users of 
procedures of unknown reliability it must pay full compensation if 
the procedures are reliable, otherwise compensation for disadvan- 
tages. (Who bears the burden of proof in the question of the relia- 
bility of the procedures?) Since the agency may recover this 
amount (forcibly) from its client who asserted his innocence, this 
will be something of a deterrent to false pleas of innocence.* 

The agency’s temporary protection and defense against the in- 
fliction of the penalty is relatively straightforward. Less straight- 
forward is the protective agency’s appropriate action after a penalty 
has been inflicted. If the punisher’s procedure was a reliable one, 
the agency does not act against the punisher. But may the agency 
punish someone who punishes its client, acting on the basis of an 

* Clients no doubt would empower their agency to proceed as described in 
the text, if the client himself is unable to say whether he is guilty or innocent, 
perhaps because he is unconscious, agreeing to replace any compensating 
amount the agency must pay to the prospective punisher. 

This deterrent to false pleas of innocence might act also to deter some in- 
nocent people against whom the evidence is overwhelming from protesting their 
innocence. There will be few such cases, but it may be to avoid this undesirable 
deterrence that a person who is found guilty beyond a reasonable doubt after 
having pleaded innocent is not also penalized for perjury. 



The State 


105 


unreliable procedure? May it punish that person independently of 
whether or not its client is guilty? Or must it investigate, using 
its own reliable procedure, to determine his guilt or innocence, 
punishing his punishers only if it determines its client innocent? 
(Or is it: if it fails to find him guilty?) By what right could the 
protective agency announce that it will punish anyone using an 
unreliable procedure who punishes its clients, independently of the 
guilt or innocence of the clients? 

The person who uses an unreliable procedure, acting upon its 
result, imposes risks upon others, whether or not his procedure 
misfires in a particular case. Someone playing Russian roulette 
upon another does the same thing if when he pulls the trigger the 
gun does not fire. The protective agency may treat the unreliable 
enforcer of justice as it treats any performer of a risky action. We 
distinguished in Chapter 4 a range of possible responses to a risky 
action, which were appropriate in different sorts of circumstances: 
prohibition, compensation to those whose boundaries are crossed, 
and compensation to all those who undergo a risk of a boundary 
crossing. The unreliable enforcer of justice might either perform 
actions others are fearful of, or not; and either might be done to 
obtain compensation for some previous wrong, or to exact retribu- 
tion. 9 A person who uses an unreliable procedure of enforcing jus- 
tice and is led to perform some unfeared action will not be pun- 
ished afterwards. If it turns out that the person on whom he acted 
was guilty and that the compensation taken was appropriate, the 
situation will be left as is. If the person on whom he acted turns 
out to be innocent, the unreliable enforcer of justice may be forced 
fully to compensate him for the action. 

On the other hand, the unreliable enforcer of justice may be for- 
bidden to impose those consequences that would be feared if ex- 
pected. Why? If done frequently enough so as to create general 
fear, such unreliable enforcement may be forbidden in order to 
avoid the general uncompensated-for fear. Even if done rarely, the 
unreliable enforcer may be punished for imposing this feared con- 
sequence upon an innocent person. But if the unreliable enforcer 
acts rarely and creates no general fear, why may he be punished for 
imposing a feared consequence upon a person who is guilty? A system 
of punishing unreliable punishers for their punishment of guilty 
persons would help deter them from using their unreliable system 



io6 


State-of-Nature Theory 


upon anyone and therefore from using it upon innocent people. 
But not everything that would aid in such deterrence may be 
inflicted. The question is whether it would be legitimate in this 
case to punish after the fact the unreliable punisher of someone 
who turned out to be guilty. 

No one has a right to use a relatively unreliable procedure in 
order to decide whether to punish another. Using such a system, 
he is in no position to know that the other deserves punishment; 
hence he has no right to punish him. But how can we say this? If 
the other has committed a crime, doesn’t everyone in a state of na- 
ture have a right to punish him? And therefore doesn’t someone 
who doesn’t know that this other person has committed the crime? 
Here, it seems to me, we face a terminological issue about how to 
merge epistemic considerations with rights. Shall we say that 
someone doesn’t have a right to do certain things unless he knows 
certain facts, or shall we say that he does have a right but he does 
wrong in exercising it unless he knows certain facts? It may be 
neater to decide it one way, but we can still say all we wish in the 
other mode; there is a simple translation between the two modes 
of discourse. 10 We shall pick the latter mode of speech; if any- 
thing, this makes our argument look less compelling. If we assume 
that anyone has a right to take something that a thief has stolen, 
then under this latter terminology someone who takes a stolen ob- 
ject from a thief, without knowing it had been stolen, had a right 
to take the object; but since he didn’t know he had this right, his 
taking the object was wrong and impermissible. Even though no 
right of the first thief is violated, the second didn’t know this and 
so acted wrongly and impermissibly. 

Having taken this terminological fork, we might propose an 
epistemic principle of border crossing: If doing act A would violate 
Q’s rights unless condition C obtained, then someone who does 
not know that C obtains may not do A . Since we may assume that 
all know that inflicting a punishment upon someone violates his 
rights unless he is guilty of an offense, we may make do with the 
weaker principle: If someone knows that doing act A would violate 
Q’s rights unless condition C obtained, he may not do A if he does 
not know that C obtains. Weaker still, but sufficient for our pur- 
poses, is: If someone knows that doing act A would violate Q’s 



The State 


107 


rights unless condition C obtained, he may not do A if he has not 
ascertained that C obtains through being in the best feasible posi- 
tion for ascertaining this. (This weakening of the consequent also 
avoids various problems connected with epistemological skep- 
ticism.) Anyone may punish a violator of this prohibition. More 
precisely, anyone has the right so to punish a violator; people may 
do so only if they themselves don’t run afoul of the prohibition, 
that is, only if they themselves have ascertained that another vio- 
lated the prohibition, being in the best position to have ascer- 
tained this. 

On this view, what a person may do is not limited only by the 
rights of others. An unreliable punisher violates no right of the 
guilty person; but still he may not punish him. This extra space is 
created by epistemic considerations. (It would be a fertile area for 
investigation, if one could avoid drowning in the morass of consid- 
erations about “subjective-ought” and “objective-ought.”) Note 
that on this construal, a person does not have a right that he be 
punished only by use of a relatively reliable procedure. (Even 
though he may, if he so chooses, give another permission to use a 
less reliable procedure on him.) On this view, many procedural 
rights stem not from rights of the person acted upon, but rather 
from moral considerations about the person or persons doing the 
acting. 

It is not clear to me that this is the proper focus. Perhaps the 
person acted upon does have such procedural rights against the 
user of an unreliable procedure. (But what is a guilty person’s 
complaint against an unreliable procedure. That it is too likely to 
mispunish him? Would we have the user of an unreliable proce- 
dure compensate the guilty person he punished, for violating his 
right?) We have seen that our argument for a protective agency’s 
punishing the wielder of the unreliable procedure for inflicting a 
penalty upon its client would go much more smoothly were this 
so. The client merely would authorize his agency to act to enforce 
his procedural right. For the purposes of our subargument here, 
we have shown that our conclusion stands, even without the facili- 
tating assumption of procedural rights. (We do not mean to imply 
that there aren’t such rights.) In either case, a protective agency 
may punish a wielder of an unreliable or unfair procedure who 



io8 


State-of-Nature Theory 


(against the client’s will) has punished one of its clients, indepen- 
dently of whether or not its client actually is guilty and therefore 
even if its client is guilty. 


THE DE FACTO MONOPOLY 

The tradition of theorizing about the state we discussed briefly in 
Chapter 2 has a state claiming a monopoly on the use of force. Has 
any monopoly element yet entered our account of the dominant 
protective agency? Everyone may defend himself against unknown 
or unreliable procedures and may punish those who use or attempt 
to use such procedures against him. As its client’s agent, the pro- 
tective association has the right to do this for its clients. It grants 
that every individual, including those not affiliated with the associ- 
ation, has this right. So far, no monopoly is claimed. To be sure, 
there is a universal element in the content of the claim: the right 
to pass on anyone’s procedure. But it does not claim to be the sole 
possessor of this right; everyone has it. Since no claim is made that 
there is some right which it and only it has, no monopoly is 
claimed. With regard to its own clients, however, it applies and 
enforces these rights which it grants that everyone has. It deems 
its own procedures reliable and fair. There will be a strong ten- 
dency for it to deem all other procedures, or even the “same” 
procedures run by others, either unreliable or unfair. But we need 
not suppose it excludes every other procedure. Everyone has the 
right to defend against procedures that are in fact not, or not 
known to be, both reliable and fair. Since the dominant protective 
association judges its own procedures to be both reliable and fair, 
and believes this to be generally known, it will not allow anyone 
to defend against them; that is, it will punish anyone who does so. 
The dominant protective association will act freely on its own un- 
derstanding of the situation, whereas no one else will be able to do 
so with impunity. Although no monopoly is claimed, the domi- 
nant agency does occupy a unique position by virtue of its power. 
It, and it alone, enforces prohibitions on others’ procedures of jus- 
tice, as it sees fit. It does not claim the right to prohibit others ar- 
bitrarily; it claims only the right to prohibit anyone’s using actu- 



The State 


109 


ally defective procedures on its clients. But when it sees itself as 
acting against actually defective procedures, others may see it as 
acting against what it thinks are defective procedures. It alone will 
act freely against what it thinks are defective procedures, whatever 
anyone else thinks. As the most powerful applier of principles 
which it grants everyone the right to apply correctly, it enforces its 
will, which, from the inside, it thinks is correct. From its strength 
stems its actual position as the ultimate enforcer and the ultimate 
judge with regard to its own clients. Claiming only the universal 
right to act correctly, it acts correctly by its own lights. It alone is 
in a position to act solely by its own lights. 

Does this unique position constitute a monopoly? There is no 
right the dominant protective association claims uniquely to pos- 
sess. But its strength leads it to be the unique agent acting across 
the board to enforce a particular right. It is not merely that it hap- 
pens to be the only exerciser of a right it grants that all possess; the 
nature of the right is such that once a dominant power emerges, it 
alone will actually exercise that right. For the right includes the 
right to stop others from wrongfully exercising the right, and only 
the dominant power will be able to exercise this right against all 
others. Here, if anywhere, is the place for applying some notion of 
a de facto monopoly: a monopoly that is not de jure because it is not 
the result of some unique grant of exclusive right while others are 
excluded from exercising a similar privilege. Other protective 
agencies, to be sure, can enter the market and attempt to wean 
customers away from the dominant protective agency. They can 
attempt to replace it as the dominant one. But being the already 
dominant protective agency gives an agency a significant market 
advantage in the competition for clients. The dominant agency can 
offer its customers a guarantee that no other agencies can match: 
“Only those procedures we deem appropriate will be used on our 
customers.” 

The dominant protective agency’s domain does not extend to 
quarrels of nonclients among themselves. If one independent is about 
to use his procedure of justice upon another independent, then 
presumably the protective association would have no right to in- 
tervene. It would have the right we all do to intervene to aid an 
unwilling victim whose rights are threatened. But since it may not 
intervene on paternalistic grounds, the protective association 



I IO 


State-of-Nature Theory 


would have no proper business interfering if both independents 
were satisfied with their procedure of justice. This does not show 
that the dominant protective association is not a state. A state, 
too, could abstain from disputes where all concerned parties chose 
to opt out of the state’s apparatus. (Though it is more difficult for 
people to opt out of the state in a limited way, by choosing some 
other procedure for settling a particular quarrel of theirs. For that 
procedure’s settlement, and their reactions to it, might involve 
areas that not all parties concerned have removed voluntarily from 
the state’s concern.) And shouldn’t (and mustn’t) each state allow 
that option to its citizens? 


PROTECTING OTHERS 

If the protective agency deems the independents’ procedures for 
enforcing their own rights insufficiently reliable or fair when ap- 
plied to its clients, it will prohibit the independents from such 
self-help enforcement. The grounds for this prohibition are that 
the self-help enforcement imposes risks of danger on its clients. 
Since the prohibition makes it impossible for the independents 
credibly to threaten to punish clients who violate their rights, it 
makes them unable to protect themselves from harm and seriously 
disadvantages the independents in their daily activities and life. 
Yet it is perfectly possible that the independents’ activities includ- 
ing self-help enforcement could proceed without anyone’s rights 
being violated (leaving aside the question of procedural rights). 
According to our principle of compensation given in Chapter 4, in 
these circumstances those persons promulgating and benefiting 
from the prohibition must compensate those disadvantaged by it. 
The clients of the protective agency, then, must compensate the in- 
dependents for the disadvantages imposed upon them by being 
prohibited self-help enforcement of their own rights against the 
agency’s clients. Undoubtedly, the least expensive way to compen- 
sate the independents would be to supply them with protective ser- 
vices to cover those situations of conflict with the paying cus- 
tomers of the protective agency. This will be less expensive than 
leaving them unprotected against violations of their rights (by not 



The State 


hi 


punishing any client who does so) and then attempting to pay 
them afterwards to cover their losses through having (and being in 
a position in which they were exposed to having) their rights 
violated. If it were not less expensive, then instead of buying pro- 
tective services, people would save their money and use it to cover 
their losses, perhaps by jointly pooling their money in an insur- 
ance scheme. 

Must the members of the protective agency pay for protective 
services (vis-a-vis its clients) for the independents? Can they insist 
that the independents purchase the services themselves? After all, 
using self-help procedures would not have been without costs for 
the independent. The principle of compensation does not require 
those who prohibit an epileptic from driving to pay his full cost of 
taxis, chauffeurs, and so on. If the epileptic were allowed to run 
his own automobile, this too would have its costs: money for the 
car, insurance, gasoline, repair bills, and aggravation. In compen- 
sating for disadvantages imposed, the prohibitors need pay only an 
amount sufficient to compensate for the disadvantages of the pro- 
hibition minus an amount representing the costs the prohibited 
party would have borne were it not for the prohibition. The prohib- 
itors needn’t pay the complete costs of taxis; they must pay only 
the amount which when combined with the costs to the prohibited 
party of running his own private automobile is sufficient for taxis. 
They may find it less expensive to compensate in kind for the 
disadvantages they impose than to supply monetary compensation; 
they may engage in some activity that removes or partially lessens 
the disadvantages, compensating in money only for the net disad- 
vantages remaining. 

If the prohibitor pays to the person prohibited monetary com- 
pensation equal to an amount that covers the disadvantages im- 
posed minus the costs of the activity where it permitted, this 
amount may be insufficient to enable the prohibited party to over- 
come the disadvantages. If his costs in performing the prohibited 
action would have been monetary, he can combine the compensa- 
tion payment with this money unspent and purchase the equiva- 
lent service. But if his costs would not have been directly mone- 
tary but involve energy, time, and the like, as in the case of the 
independent’s self-help enforcement of rights, then this monetary 
payment of the difference will not by itself enable the prohibited 



1 12 


State-of -Nature Theory 


party to overcome the disadvantage by purchasing the equivalent 
of what he is prohibited. If the independent has other financial 
resources he can use without disadvantaging himself, then this 
payment of the difference will suffice to leave the prohibited party 
undisadvantaged. But if the independent has no such other finan- 
cial resources, a protective agency may not pay him an amount less 
than the cost of its least expensive protective policy, and so leave 
him only the alternatives of being defenseless against the wrongs 
of its clients or having to work in the cash market to earn sufficient 
funds to total the premium on a policy. For this financially pressed 
prohibited individual, the agency must make up the difference be- 
tween the monetary costs to him of the unprohibited activity and 
the amount necessary to purchase an overcoming or counter- 
balancing of the disadvantage imposed. The prohibitor must com- 
pletely supply enough, in money or in kind, to overcome the 
disadvantages. No compensation need be provided to someone 
who would not be disadvantaged by buying protection for himself. 
For those of scanter resources, to whom the unprohibited activity 
had no monetary costs, the agency must provide the difference be- 
tween the resources they can spare without disadvantage and the 
cost of protection. For someone for whom it had some monetary 
costs, the prohibitor must supply the additional monetary amount 
(over and above what they can spare without disadvantage) neces- 
sary to overcome the disadvantages. If the prohibitors compensate 
in kind, they may charge the financially pressed prohibited party 
for this, up to the monetary costs to him of his unprohibited activ- 
ity provided this amount is not greater than the price of the 
good . 11 As the only effective supplier, the dominant protective 
agency must offer in compensation the difference between its own 
fee and monetary costs to this prohibited party of self-help enforce- 
ment. It almost always will receive this amount back in partial 
payment for the purchase of a protection policy. It goes without 
saying that these dealings and prohibitions apply only to those 
using unreliable or unfair enforcement procedures. 

Thus the dominant protective agency must supply the indepen- 
dents — that is, everyone it prohibits from self-help enforcement 
against its clients on the grounds that their procedures of enforce- 
ment are unreliable or unfair — with protective services against its 
clients; it may have to provide some persons services for a fee that 



The State 


ii3 

is less than the price of these services. These persons may, of 
course, choose to refuse to pay the fee and so do without these 
compensatory services. If the dominant protective agency provides 
protective services in this way for independents, won’t this lead 
people to leave the agency in order to receive its services without 
paying? Not to any great extent, since compensation is paid only 
to those who would be disadvantaged by purchasing protection for 
themselves, and only in the amount that will equal the cost of an 
unfancy policy when added to the sum of the monetary costs of 
self-help protection plus whatever amount the person comfortably 
could pay. Furthermore, the agency protects these independents it 
compensates only against its own paying clients on whom the in- 
dependents are forbidden to use self-help enforcement. The more 
free riders there are, the more desirable it is to be a client always 
protected by the agency. This factor, along with the others, acts to 
reduce the number of free riders and to move the equilibrium 
toward almost universal participation. 


THE STATE 

We set ourselves the task, in Chapter 3, of showing that the dom- 
inant protective association within a territory satisfied two crucial 
necessary conditions for being a state: that it had the requisite sort 
of monopoly over the use of force in the territory, and that it pro- 
tected the rights of everyone in the territory, even if this universal 
protection could be provided only in a “redistributive” fashion. 
These very crucial facets of the state constituted the subject of the 
individualist anarchists’ condemnation of the state as immoral. We 
also set ourselves the task of showing that these monopoly and re- 
distributive elements were themselves morally legitimate, of show- 
ing that the transition from a state of nature to an ultraminimal 
state (the monopoly element) was morally legitimate and violated 
no one’s rights and that the transition from an ultraminimal to a 
minimal state (the “redistributive” element) also was morally le- 
gitimate and violated no one’s rights. 

A protective agency dominant in a territory does satisfy the two 
crucial necessary conditions for being a state. It is the only gener- 



State-of-Nature Theory 


1 14 

ally effective enforcer of a prohibition on others’ using unreliable 
enforcement procedures (calling them as it sees them), and it over- 
sees these procedures. And the agency protects those nonclients in 
its territory whom it prohibits from using self-help enforcement 
procedures on its clients, in their dealings with its clients, even if 
such protection must be financed (in apparent redistributive fash- 
ion) by its clients. It is morally required to do this by the princi- 
ple of compensation, which requires those who act in self-protec- 
tion in order to increase their own security to compensate those 
they prohibit from doing risky acts which might actually have 
turned out to be harmless 12 for the disadvantages imposed upon 
them. 

We noted in beginning Chapter 3 that whether the provision of 
protective services for some by others was “redistributive” would 
depend upon the reasons for it. We now see that such provision 
need not be redistributive since it can be justified on other than re- 
distributive grounds, namely, those provided in the principle of 
compensation. (Recall that “redistributive” applies to reasons for a 
practice or institution, and only elliptically and derivatively to the 
institution itself.) To sharpen this point, we can imagine that pro- 
tective agencies offer two types of protection policies: those pro- 
tecting clients against risky private enforcement of justice and 
those not doing so but protecting only against theft, assault, and 
so forth (provided these are not done in the course of private en- 
forcement of justice). Since it is only with regard to those with the 
first type of policy that others are prohibited from privately enforc- 
ing justice, only they will be required to compensate the persons 
prohibited private enforcement for the disadvantages imposed 
upon them. The holders of only the second type of policy will not 
have to pay for the protection of others, there being nothing they 
have to compensate these others for. Since the reasons for wanting 
to be protected against private enforcement of justice are compel- 
ling, almost all who purchase protection will purchase this type of 
protection, despite its extra costs, and therefore will be involved in 
providing protection for the independents. 

We have discharged our task of explaining how a state would 
arise from a state of nature without anyone’s rights being violated. 
The moral objections of the individualist anarchist to the minimal 
state are overcome. It is not an unjust imposition of a monopoly; 



the de facto monopoly grows by an invisible-hand process and by 
morally permissible means, without anyone’s rights being violated 
and without any claims being made to a special right that others 
do not possess. And requiring the clients of the de facto monop- 
oly to pay for the protection of those they prohibit from self- 
help enforcement against them, far from being immoral, is 
morally required by the principle of compensation adumbrated in 
Chapter 4. 

We canvassed, in Chapter 4, the possibility of forbidding peo- 
ple to perform acts if they lack the means to compensate others for 
possible harmful consequences of these acts or if they lack liability 
insurance to cover these consequences. Were such prohibition le- 
gitimate, according to the principle of compensation the persons 
prohibited would have to be compensated for the disadvantages im- 
posed upon them, and they could use the compensatory payments 
to purchase the liability insurance! Only those disadvantaged by 
the prohibition would be compensated: namely, those who lack 
other resources they can shift (without disadvantaging sacrifice) to 
purchase the liability insurance. When these people spend their 
compensatory payments for liability insurance, we have what 
amounts to public provision of special liability insurance. It is 
provided to those unable to afford it and covers only those risky 
actions which fall under the principle of compensation — those ac- 
tions which are legitimately prohibited when uncovered (provided 
disadvantages are compensated for), actions whose prohibition 
would seriously disadvantage persons. Providing such insurance al- 
most certainly would be the least expensive way to compensate 
people who present only normal danger to others for the disadvan- 
tages of the prohibition. Since they then would be insured against 
the eventuation of certain of their risks to others, these actions 
then would not be prohibited to them. Thus we see how, if it 
were legitimate to prohibit some actions to those uncovered by lia- 
bility insurance, and were this done, another apparent redistrib- 
utive aspect of the state would enter by solid libertarian moral 
principles! (The exclamation point stands for my surprise.) 

Does the dominant protective agency in a given geographical 
territory constitute the state of that territory? We have seen in 
Chapter 2 how the notion of a monopoly on the use of force is dif- 
ficult to state precisely so that it does not fall before obvious coun- 



State-of-Nature Theory 


1 16 

terexamples. This notion, as usually explained, cannot be used 
with any confidence to answer our question. We should accept a 
decision yielded by the precise wording of a definition in some text 
only if that definition had been devised for application to cases as 
complicated as ours and had stood up to tests against a range of 
such cases. No classification, in passing, by accident can answer 
our question in any useful manner. 

Consider the following discursive description by an anthropol- 
ogist: 

The concentration of all physical force in the hands of the central author- 
ity is the primary function of the state and is its decisive characteristic. 
In order to make this clear, consider what may not be done under the 
state form of rule: no one in the society governed by the state may take 
another’s life, do him physical harm, touch his property, or damage his 
reputation save by permission of the state. The officers of the state have 
powers to take life, inflict corporal punishment, seize property as fine or 
by expropriation, and affect the standing and reputation of a member of 
the society. 

This is not to say that in societies without the state one may take life 
with impunity. But in such societies (e.g. , among Bushmen, Eskimo, 
and the tribes of central Australia) the central authority that protects the 
household against wrongdoers is nonexistent, weak, or sporadic, and it 
was applied among the Crow and other Indians of the western Plains 
only as situations arose. The household or the individual is protected in 
societies without the state by nonexplicit means, by total group partici- 
pation in suppression of the wrongdoer, by temporarily or sporadically 
applied force that is no longer needed (and so no longer used) when the 
cause for its application is past. The state has means for the suppression 
of what the society considers to be wrongs or crimes: police, courts of 
law, prisons, institutions which explicitly and specifically function in 
this area of activity. Moreover, these institutions are stable within the 
frame of reference of the society, and permanent. 

When the state was formed in ancient Russia, the ruling prince as- 
serted the power to impose fines and to wreak physical pain and death, 
but allowed no one else to act thus. He asserted once again the monopo- 
listic nature of the state power by withholding its power from any 
other person or body. If harm was done by one subject to another 
without the prince’s express permission, this was a wrong, and the wrong- 
doer was punished. Moreover, the prince’s power could only be explic- 
itly delegated. The class of subject thus protected was thereby care- 
fully defined, of course; by no means were all those within his realm so 
protected. 

No one person or group can stand in place of the state; the state’s acts 



can only be performed directly or by express delegation. The state in 
delegating its power makes its delegate an agent (organ) of the state. Po- 
licemen, judges, jail guards derive their power to coerce, according to 
the rules of the society, directly from the central authority; so do the 
tax-collectors, the military, frontier guards, and the like. The authorita- 
tive function of the state rests on its command of these forces as its 
1 1 

agents. 

The writer does not claim that the features he lists all are necessary 
features of the state; divergence in one feature would not serve to 
show that the dominant protective agency of a territory was not a 
state. Clearly the dominant agency has almost all of the features 
specified; and its enduring administrative structures, with full- 
time specialized personnel, make it diverge greatly — in the direc- 
tion of a state — from what anthropologists call a stateless society. 
On the basis of the many writings like that quoted, one would call 
it a state. 

It is plausible to conclude that the dominant protective associa- 
tion in a territory is its state, only for a territory of some size con- 
taining more than a few people. We do not claim that each person 
who, under anarchy, retains a monopoly on the use of force on his 
quarter acre of property is its state; nor are the only three inhabi- 
tants of an island one square block in size. It would be futile, and 
would serve no useful purpose, to attempt to specify conditions on 
the size of population and territory necessary for a state to exist. 
Also, we speak of cases where almost all of the people in the terri- 
tory are clients of the dominant agency and where independents 
are in a subordinate power position in conflicts with the agency 
and its clients. (We have argued that this will occur.) Precisely 
what percentage must be clients and how subordinate the power 
position of the independents must be are more interesting ques- 
tions, but concerning these I have nothing especially interesting to 
say. 

One additional necessary condition for a state was extracted 
from the Weberian tradition by our discussion in Chapter 2: 
namely, that it claim to be the sole authorizer of violence. The 
dominant protective association makes no such claim. Having de- 
scribed the position of the dominant protective association, and 
having seen how closely it fits anthropologists' notions, should we 
weaken the Weberian necessary condition so that it includes a de 



State-of-Nature Theory 


1 18 

facto monopoly which is the territory’s sole effective judge over the 
permissibility of violence, having a right (to be sure, one had by 
all) to make judgments on the matter and to act on correct ones? 
The case is very strong for doing so, and it is wholly desirable and 
appropriate. We therefore conclude that the protective association 
dominant in a territory, as described, is a state. However, to 
remind the reader of our slight weakening of the Weberian condi- 
tion, we occasionally shall refer to the dominant protective agency 
as “a statelike entity,” instead of simply as “a state.” 


THE INVISIBLE-HAND EXPLANATION 
OF THE STATE 

Have we provided an invisible-hand explanation (see Chapter 2) of 
the state’s arising within a state of nature; have we given an in- 
visible-hand explanation of the state? The rights possessed by the 
state are already possessed by each individual in a state of nature. 
These rights, since they are already contained whole in the explan- 
atory parts, are not provided an invisible-hand explanation. Nor 
have we provided an invisible-hand explanation of how the state 
acquires rights unique to it. This is fortunate; for since the state 
has no special rights, there is nothing of that sort to be explained. 

We have explained how, without anyone having this in mind, 
the self-interested and rational actions of persons in a Lockean state 
of nature will lead to single protective agencies dominant over 
geographical territories; each territory will have either one domi- 
nant agency or a number of agencies federally affiliated so as to 
constitute, in essence, one. And we have explained how, without 
claiming to possess any rights uniquely, a protective agency domi- 
nant in a territory will occupy a unique position. Though each 
person has a right to act correctly to prohibit others from violating 
rights (including the right not to be punished unless shown to 
deserve it), only the dominant protective association will be able, 
without sanction, to enforce correctness as it sees it. Its power 
makes it the arbiter of correctness; it determines what, for pur- 
poses of punishment, counts as a breach of correctness. Our expla- 
nation does not assume or claim that might makes right. But 



might does make enforced prohibitions, even if no one thinks the 
mighty have a special entitlement to have realized in the world 
their own view of which prohibitions are correctly enforced. 

Our explanation of this de facto monopoly is an invisible-hand 
explanation. If the state is an institution (i) that has the right to 
enforce rights, prohibit dangerous private enforcement of justice, 
pass upon such private procedures, and so forth, and (2) that effec- 
tively is the sole wielder within a geographical territory of the 
right in (1), then by offering an invisible-hand explanation of (2), 
though not of (1), we have partially explained in invisible-hand 
fashion the existence of the state. More precisely, we have partially 
explained in invisible-hand fashion the existence of the ul- 
traminimal state. What is the explanation of how a minimal state 
arises? The dominant protective association with the monopoly el- 
ement is morally required to compensate for the disadvantages it 
imposes upon those it prohibits from self-help activities against its 
clients. However, it actually might fail to provide this compensa- 
tion. Those operating an ultraminimal state are morally required 
to transform it into a minimal state, but they might choose not to 
do so. We have assumed that generally people will do what they 
are morally required to do. Explaining how a state could arise from 
a state of nature without violating anyone’s rights refutes the prin- 
cipled objections of the anarchist. But one would feel more con- 
fidence if an explanation of how a state would arise from a state of 
nature also specified reasons why an ultraminimal state would be 
transformed into a minimal one, in addition to moral reasons, if it 
specified incentives for providing the compensation or the causes of 
its being provided in addition to people’s desire to do what they 
ought. We should note that even in the event that no nonmoral 
incentives or causes are found to be sufficient for the transition 
from an ultraminimal to a minimal state, and the explanation con- 
tinues to lean heavily upon people’s moral motivations, it does not 
specify people’s objective as that of establishing a state. Instead, 
persons view themselves as providing particular other persons with 
compensation for particular prohibitions they have imposed upon 
them. The explanation remains an invisible-hand one. 



CHAPTER 

6 


Further Considerations 
on the Argument 
for the State 


UR argument detailing how a minimal state arises, Iegiti- 
mately, from a state of nature is now completed. It behooves us, 
in addition, to consider various objections to the argument, and to 
comment further upon it, connecting it with some other issues. 
The reader who wishes to pursue the main flow of our argument 
may proceed directly to the next chapter. 


STOPPING THE PROCESS? 

We have argued that the right of legitimate self-defense against 
the dangers of unreliable or unfair enforcement procedures gives 
anyone the right to oversee others’ enforcement of their rights 
against him; and that he may empower his protective agency to 
exercise this right for him. When we combine this argument with 
our account of the rise of the de facto monopoly, does it “prove” 


120 



Further Considerations on the Argument for the State 


1 2 I 


too much? The existence of the de facto monopoly creates (within a 
situation of equal rights) an imbalance of power. This provides 
increased security for some while it endangers others; it provides 
increased security for those clients of the dominant agency who 
cannot be punished by others without their agency’s permission, 
while it endangers those less able to defend themselves against in- 
justices worked by the clients of the dominant agency, or by the 
agency itself. Does the right of legitimate self-defense allow each 
of these parties to forbid the other in order to reduce risks to it- 
self? Acting in self-defense, may the dominant protective agency 
and its clients forbid others from aligning with a competing pro- 
tective agency? For a competing agency might outdistance the 
dominant agency in power, thus endangering its clients and mak- 
ing their position less secure. Such a prohibition presumably 
would be applied to the clients of the dominant agency as well, 
limiting their freedom to switch agencies. Even if no one competi- 
tor plausibly is viewed as threatening the dominant agency’s 
power, there is the possibility of all the individually weaker agen- 
cies uniting together against the dominant one, thereby constitut- 
ing a significant threat or becoming jointly stronger even. May 
the dominant agency forbid others to acquire more than a certain 
amount of power, in order to eliminate any possibility of its being 
weaker than the combination of all against it? In order to maintain 
the imbalance of power may the dominant agency legitimately for- 
bid others to acquire power? Similar questions arise on the other 
side: if an individual in a state of nature foresees that when others 
combine into a protective agency or association this will reduce his 
own security and endanger him, may he prohibit others from so 
combining at all? May he prohibit others from aiding in the es- 
tablishment of a de facto state? 1 

Does the very right to self-defense, which allows an agency to 
pass upon others’ self-enforcement mechanisms, also allow each 
person to forbid every other person from joining a protective asso- 
ciation? If the right were that strong and extensive, then that very 
right which provided a legitimate moral channel for the establish- 
ment of a state also would undercut the state by giving others the 
right to prohibit the use of the channel. 

The situation any two individuals occupy with respect to each 
other in a state of nature is described in Matrix I. 



Join a protective associa- Join a protective associa- Don't join a protective as- Don't join a protective as- 

tion and allow I to join any tion and attempt to pro- sociation and allow I to sociation and attempt to 

protective association. hibit I from joining an- join a protective associa- prohibit I from joining a 

other protective associa- tion. protective association. 

Person I tion. 


s £, . 

■5 IT s 

e o x 

o C .SP 

~ C 

• 5 — * 
c -S 
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U 


Don’t join a protective as- II’s association in dominant II’s association in dominant Neither joins protective as- Neither joins protective as- 
sociation and allow II to position. I in inferior posi- position. I in inferior posi- sociation. I and II in pure sociation. I and II in pure 

join a protective associa- tion to enforce rights. tion to enforce rights. Lockean unorganized state Lockean unorganized state 

tion. of nature. of nature. 


Further Considerations on the Argument for the State 


123 


If we assume that it is better to be the client of the powerful 
dominant protective agency in an area, than not to be; and it is 
better to be a client of the dominant agency, if the other fellow 
isn’t, then Matrix I instances the structure presented in Matrix II 
(with the particular intervals between the numbers not to be taken 
too seriously). 


Person I 

A' 

MATRIX II 

Person II 

B' C' 

D' 

A 

5. 5 

4 . 6 

IO, 0 

10, 0 

B 

6 , 4 

5. 5 

10, 0 

10, 0 

C 

0, 10 

0, 10 

X, X 

X, X 

D 

0, 10 

0, 10 

X, X 

X, X 


If they do not adhere to any moral constraints that forbid this, I 
will do B and II will do B' . The argument is as follows. B(B') 
weakly dominates A (A'), so I will not do A and II will not do 
A' * C and D ( C ' and D') collapse together, so we need treat only 
one of them; without loss of generality, we treat C(C'). The ques- 
tion that remains is whether each person will choose to do his B 
action or his C action. (We need consider only the truncated Ma- 
trix III, which collapses D(D') into C(C’) and which omits A and 
A', since neither loses if the other one does his A action.) 
So long as jc<io, as it apparently is (being in an unorganized 
state of nature with respect to someone is less preferred than being 
in the dominant protective association while he is not), B strongly 
dominates C, and B ' strongly dominates C\ So in the absence of 
moral constraints, two rational individuals would do B and B' . If 
x<io, this is sufficient to yield ( B , B') by a dominance argu- 


* In the terminology of decision theorists, one action weakly dominates 
another if relative to no state of the world does it do worse than the other, and 
relative to some state(s) of the world it does better. An action strongly domi- 
nates another if relative to every state of the world it does better. 



124 


State-of -Nature Theory 


MATRIX III 

Person II 


Person I 

B' 

c' 

B 

5* 5 

IO, 0 

C 

0, 10 

X, X 


ment. 2 If also *>5, (for example, 7) we have a “prisoners’ di- 
lemma” situation in which individually rational behavior is jointly 
inefficient because it leads to an outcome (5, 5) which each prefers 
less than another (7, 7) that is available to them. 3 Some have 
argued that a proper function of government is to prohibit people’s 
performing the dominant action in prisoners’ dilemma situations. 
However that may be, if someone in a state-of-nature situation 
takes upon himself this supposed function of the state (and at- 
tempts to prohibit others from performing A or B), then his action 
vis-a-vis others is not act C; for he is forbidding others to perform 
their dominant action, namely, to join a protective association. 
Will this person, a self-appointed surrogate for the state, perform 
act D then? He might try to do this. But, in addition to its being 
individually nonoptimal for him, he is most unlikely to be suc- 
cessful against individuals who combine into protective associa- 
tions, for he is most unlikely to be more powerful than they. To 
have a real chance of being successful, he must combine with 
others to act (performing A or B), and hence he cannot succeed in 
forcing everyone, including himself, away from their dominant ac- 
tions A or B . 

This situation of x > 5 has a theoretical interest above and 
beyond the usual interest of the prisoners’ dilemma. For in this 
situation an anarchist state of nature is jointly best of all the sym- 
metrical situations, and it is in each individual’s interest to di- 
verge from this joint best solution. Yet any attempt (promising 
success) to enforce this joint best solution itself constitutes a di- 
vergence (which causes other divergencies in self-defense) from it. 
If x>5, the state, presented by some as the “solution” to avoid 
the prisoner’s dilemma, would instead be its unfortunate outcome! 

If each individual acts rationally, unlimited by moral con- 



Further Considerations on the Argument for the State 


125 


straints, ( B , B') will emerge. How will things differ, if at all, with 
the addition of moral constraints? It might be thought that moral 
considerations require allowing another to do whatever you do; 
since the situation is symmetrical some symmetrical solution must 
be found. To this the fishy reply might be made that ( B , B') is 
symmetrical, and hence someone performing a B-ish action recog- 
nizes that the other will do likewise. But recognizing that another 
will do likewise is not the same as allowing him to do this. A per- 
son performing a B-ish action is trying to impose a (B, C') solu- 
tion. What moral right does he have to impose this asymmetry, to 
force others not to behave as he does? But before accepting this 
strong counterreply as conclusive, we should ask whether each per- 
son faces or views himself as facing a symmetrical situation? Each 
person knows more about himself than he does about the other; 
each can be surer of his own intentions not to aggress against the 
other if he finds himself in the dominant power position, than he 
can be of the others’ similar intentions. (Following Acton, we 
might wonder whether any of us can be sure, or even reasonably 
confident.) Given this asymmetry of each knowing more about his 
own intentions than about those of the other party , 4 isn’t it rea- 
sonable for each to pursue the B-ish action? Rather, since it’s indi- 
vidually rational, does this asymmetry serve to rebut the argument 
from symmetry for the (A, A') solution and against the (B, B') 
solution? Clearly, things become very messy. 

Rather than focusing on the total situation, it would be more 
promising to ask whether something special about the B-ish ac- 
tions excludes them as morally permissible. Does some moral 
prohibition rule out BP If so, we must distinguish the B actions 
from those other prohibitings of actions on the grounds of the risk 
they present, which we have already held to be legitimate. What 
distinguishes prohibiting others from joining another protective 
agency, or forcibly acting to prevent another agency from getting 
more powerful than your own or yourself from an agency’s forbid- 
ding others to punish its clients except by a reliable procedure (and 
punishing those who disobey this prohibition even should it turn 
out that the clients did wrong these others and were not in- 
nocent)? Let us first consider cases which commonly are distin- 
guished. 



126 


State-of-Nature Theory 


PREEMPTIVE ATTACK 

According to usual doctrine, under some circumstances a country 
X may launch a preemptive attack, or a preventive war, upon 
another country Y; for example, if Y is itself about to launch an 
immediate attack upon X, or if Y has announced that it will do so 
upon reaching a certain level of military readiness, which it ex- 
pects to do some time soon. Yet it is not accepted doctrine that 
one nation X may launch a war against another nation Y because 
Y is getting stronger, and (such is the behavior of nations) might 
well attack X when it gets stronger still. Self-defense plausibly 
covers the first sort of situation but not the second. Why? 

It might be thought that the difference is merely a matter of 
greater or lesser probability. When a nation is about to launch an 
attack, or has announced that it will when and if it reaches a cer- 
tain level of readiness, the probability is very high that it will at- 
tack. Whereas the probability is not as great that any nation get- 
ting stronger will attack when it attains greater strength. But the 
distinction between the cases does not depend upon such probabil- 
ity considerations. For however low the probability, estimated by 
the “experts” of neutral countries, of Y’s launching an attack onX 
(in the second case) within the next ten years (0.5, 0.2, 0.05), we 
can imagine alternatively that Y now is about to wield a super- 
device fresh out of its scientific laboratories that, with that proba- 
bility, will conquer X; while with one minus that probability, it 
will do nothing. (Perhaps this probability is the probability of the 
device’s working, or perhaps the device itself is probabilistic.) The 
device is set to be wielded within one week; Y is committed to use 
it, the timetable is being followed and a countdown has begun. 
Here X, in self-defense, may attack, or issue an ultimatum that if 
the device is not dismantled within two days it will attack, and so 
on. (And what if, though the timetable doesn’t call for it, the 
device can be used the next day or immediately?) If Y were spin- 
ning a roulette wheel and with probability 0.025 the damage of war 
would be inflicted on X, X could act in self-defense. But, in the 
second case even when the probability is equal, X may not so act 
against Y’s arming. Therefore, the issue is not merely a matter of 
how high the probability is. Upon what, then, if not the magni- 



Further Considerations on the Argument for the State 


127 


tude of the probability, does the distinction between the first type 
of case and the second type rest? 

The distinction depends on how the harm, if it eventuates, is 
related to what Y already has done. For some actions that yield 
various outcomes with various probabilities, nothing more need be 
done by the agent (after the action is performed) to produce an 
outcome which, when it eventuates, is something he did or 
brought about or caused to happen, and so on. (In some cases, fur- 
ther actions of others might be needed, for example, soldiers obey- 
ing a commander’s orders.) If such an action yields a high enough 
probability of a dangerous “border crossing,” another may prohibit 
it. On the other hand, some processes might lead to certain possi- 
ble consequences, but only if further decisions are made by the 
people engaging in them. Processes might, as in the cases we are 
considering, place people in a better position to do something, 
and so make it more likely that they will decide to do it. These 
processes involve further significant decisions by the persons and 
the border crossings depend upon these decisions (made more likely 
by the process). It is permissible to prohibit the former actions 
where the person need do nothing more, but not to prohibit the 
latter processes.* Why? 

Perhaps the principle is something like this: an act is not wrong 
and so cannot be prohibited if it is harmless without a further 
major decision to commit wrong (that is, if it would not be wrong 
if the agent was fixed unalterably against the further wrong deci- 
sion); it can only be prohibited when it is a planned prelude to the 
further wrong action. So stated, the principle would protect ac- 
tions that merely facilitate others’ wrongdoing if the acts are 
harmless in themselves — for example, publishing the plans of the 
alarm systems of banks. The act would be tolerated were it known 
that others would not decide to do wrong. Among such actions, 
the clearest candidates for prohibition are those which, it is 


* The former class includes setting processes going whose possible harm does 
not depend upon significant new decisions, though it may require reaffirmation 
of old ones. For these cases, the distinction between prohibition (punishing af- 
terwards) and preventing in advance wobbles. Sometimes it will be unclear 
whether action taken after the process has begun but before the danger is 
realized was taken to punish violators of the prohibition on the dangerous pro- 
cess or to prevent the danger from occurring. 



128 


State-of-Nature Theory 


thought, could be done for no reason other than to facilitate 
wrongdoing. (Even here, can’t one always imagine an eccentric 
with legitimate though odd reasons?) We may avoid this question 
of whether such actions so clearly intended only to aid the wrong- 
doing of others may be prohibited. All the actions we are con- 
cerned with could be done for perfectly legitimate and respectable 
reasons (for example, self-defense), and they require further deci- 
sion to commit wrong by the agent himself, if wrong is to occur. 

A stringent principle would hold that one may prohibit only 
the last wrong decision necessary to produce the wrong. (Or, the 
last act necessary to an alternative in a set, any one of which is 
necessary.) More stringent yet would be a principle holding that 
one may prohibit only the passing of the last clear point at which 
the last wrong decision necessary to the wrong can be reversed. 
More latitude is given to prohibition by the following principle 
(hence it is a weaker principle against prohibition): Prohibit only 
wrong decisions and actions on them (or dangerous actions requir- 
ing no further wrong decisions). One may not prohibit actions 
which are not based on decisions that are wrong, merely on the 
grounds that they facilitate or make more likely the agent himself 
later making wrong decisions and doing the wrong actions which 
follow from them. Since even this weaker principle is sufficient to 
exclude prohibiting others from strengthening their protective 
agency or joining another one, we need not decide here which 
principle is most appropriate. (The two stronger principles, of 
course, also would exclude such prohibitions.) 

It might be objected that the principles adumbrated should not 
be applied to hold impermissible some group A’s forcibly inter- 
vening in the process of B's strengthening their protective agency. 
For that process is a special one; if it is successful, A will be in a 
far weaker position, if not unable, to enforce the prohibition on 
wrong when finally A is entitled to do so. How can A be asked to 
refrain from prohibiting the earlier stages when it knows that any 
wrongs will be done later when it is unable to oppose them as ef- 
fectively? But if the early stages of B ’s process involve no commit- 
ment to any later wrong, and if B has good (nonaggressive) reasons 
for its actions, then it is not absurd to hold that others may not 
interfere with the earlier and in themselves (supposing certain con- 



Further Considerations on the Argument for the State 


129 


tinuations) harmless stages, even though this abstention will put 
them in a less strong position later . 5 

We have found a distinction, which appears theoretically signif- 
icant, that distinguishes a protective agency’s forbidding others 
from using unreliable or unfair procedures to exact justice on its 
clients from other prohibitions — such as forbidding others to form 
another protective agency — which might be thought to be allow- 
able if the first is. For our purposes in this essay we need not pro- 
vide the theory which underlies this distinction and explains its 
significance, even though investigating these issues promises to 
lead very quickly to fundamental questions. It is enough to have 
rebutted the charge we imagined earlier that our argument foils 
because it “proves” too much, in that it provides a rationale not 
only for the permissible rise of a dominant protective association, 
but also for this association’s forcing someone not to take his pa- 
tronage elsewhere or for some person’s forcing others not to join 
any association. Our argument provides no rationale for the latter 
actions and cannot be used to defend them. 

We have put forth a principle which excludes prohibiting ac- 
tions not wrong in themselves, actions that merely facilitate or 
make more likely the commission of other wrongs dependent upon 
other wrong decisions the agent has not made (yet). (This state- 
ment is intentionally ambiguous so as to encompass the strong and 
the weak principles.) This principle does not claim that no one 
may be held responsible or be punished for attempting to get 
others to do wrong because to succeed the attempt requires the 
decision of others to do wrong. For the principle focuses on whether 
the thrust toward wrong already has been made and is now out of 
that person’s hands. It is & further question whether and to what ex- 
tent any decisions of others can eliminate his responsibility for the 
result of his original attempt. Prime candidates for responsibility 
continuing are attempts to get others to do some wrong, which at- 
tempt succeeds (not by accident and in the manner intended, and 
so forth) in getting them to decide and act wrongly. (In this case, 
isn’t the original act wrong itself, and so not protected from prohi- 
bition under the conditions of the principle?) 

The contrasting view holds that the further decisions of others 
eliminate the responsibility of someone who succeeds in his at- 



130 


State-of-Nature Theory 


tempt to get them to act in a certain way; though he persuades 
them or convinces them or whips them up to do it, they could 
have chosen to refrain. The following model might underlie this 
view. For each act, so the model runs, there is a fixed amount of 
responsibility; this might be measured by how much punishment 
there is to be for the act. Someone persuaded by another to do 
something may be punished fully for his action; he may be pun- 
ished as much as someone who decides all by himself to do the 
same action. Since all of the punishment for that action is used 
up, so is all of the responsibility for it; there is no more responsi- 
bility or punishment for that action left over to place on another 
person. So, the argument concludes, a person who persuades an- 
other to decide to do something cannot be held responsible for or 
at all punished for the consequences of the other’s action. But this 
model of a fixed amount of responsibility for an act is mistaken. If 
two persons each cooperate in murdering or assaulting a third, 
then each assaulter or murderer may be punished fully. Each may 
receive the same punishment as someone acting alone, n years say. 
They need not each be given nil. Responsibility is not a bucket in 
which less remains when some is apportioned out; there is not a 
fixed amount of punishment or responsibility which one uses up so 
that none is left over for the other. Since this model or picture of 
how responsibility operates is mistaken, a major prop is removed 
from the view that no one may be punished for persuading another 
responsible individual to do something . 6 


BEHAVIOR IN THE PROCESS 

We have argued that even someone who foresees that a protective 
association will become dominant may not forbid others to join 
up. But though no one may be forbidden to join up, might not 
everyone choose to stay out, in order to avoid the state at the end of 
the process? Might not a population of anarchists realize how indi- 
vidual efforts at hiring protection will lead, by an invisible-hand 
process, to a state, and because they have historical evidence and 
theoretical grounds for the worry that the state is a Frankenstein 
monster that will run amuck and will not stay limited to minimal 



Further Considerations on the Argument for the State 131 

functions, might not they each prudentially choose not to begin 
along that path? 7 If told to anarchists, is the invisible-hand ac- 
count of how the state arises a self-defeating prophecy? 

It will be difficult for such concerted effort to succeed in block- 
ing the formation of the state, since each individual will realize 
that it is in his own individual interests to join a protective associ- 
ation (the more so as some others join), and his joining or not will 
not make the difference as to whether or not the state develops. 
(The B actions of the earlier matrices are dominant.) However, it 
must be admitted that other individuals with special motivations 
would not behave as we have described: for example, people whose 
religion prohibits purchasing protection or joining with others in 
protective ventures; or misanthropes who refuse to cooperate with 
or hire any other persons; or personal pacifists who refuse to sup- 
port or participate in any institution that uses force, even for their 
own self-defense. We must restrict our claim that a state would 
arise from a state of nature, so as to exclude these special psycholo- 
gies which thwart the operation of the invisible-hand process we 
have described. For each special psychology, we may insert a spe- 
cific clause in the claim to exclude it. Thus: in a territory contain- 
ing rational individuals who also are willing to use force in self- 
defense and are willing to cooperate with others and to hire 
them, . . . 

At the close of Chapter 5, we argued that a territory with a 
dominant protective agency contains a state. Would Locke agree 
that in such a territory there was a state or civil society? If so, 
would he say it had been created by a social compact? Clients of 
the same protective agency are in a state of civil society with re- 
spect to each other; clients and independents have exactly the same 
rights vis-a-vis each other as any two persons in a state of nature, 
and hence are in a state of nature with respect to each other ( Two 
Treatises of Government, II, sect. 87). But does the fact that the in- 
dependents yield before the superior power of the dominant pro- 
tective agency and don’t act as executioners of the law of nature 
against its clients (despite having a right to) mean that they are 
not in a Lockean state of nature with respect to the clients? Should 
one say they are in a de jure state of nature but not a de facto one? 
Would Locke use some notion of political or civil society under 
which there could be a civil society in an area even if not every two 



132 


State-of-Nature Theory 


people in that area stood in a civil-society relationship with respect 
to each other? One also would want this notion to be of political 
interest; if merely two of the many individuals in an area stand in 
a civil-society relationship with respect to each other, this should 
be insufficient for there to be civil society in that area. 8 

We have described a process whereby individuals in an area sep- 
arately sign up for personal protection with different business en- 
terprises which provide protective services, all but one of the agen- 
cies being extinguished or all coming to some modus vivendi, and so 
on. To what degree, if any, does this process fit what Locke en- 
visioned as individuals “agreeing with other men to join and unite 
into a community,” consenting “to make one community or gov- 
ernment” (sect. 95), compacting to make up a commonwealth 
(sect. 99)? The process looks nothing like unanimous joint agree- 
ment to create a government or state. No one, as they buy protec- 
tive services from their local protective agency, has in mind any- 
thing so grand. But perhaps joint agreement where each has in 
mind that the others will agree and each intends to bring about 
the end result of this is not necessary for a Lockean compact. 9 I 
myself see little point to stretching the notion of “compact” so 
that each pattern or state of affairs that arises from the disparate 
voluntary actions of separately acting individuals is viewed as aris- 
ing from a social compact, even though no one had the pattern in 
mind or was acting to achieve it. Or, if the notion is so stretched, 
this should be made clear so that others are not misled as to its 
import. It should be made clear that the notion is such that each 
of the following arises from a social compact: the total state of af- 
fairs constituted by who is married to, or living with, whom; the 
distribution on a given evening in a given city of who is in what 
movie theater, sitting where; the particular traffic pattern on a 
state’s highways on a given day; the set of customers of a given 
grocery store on a given day and the particular pattern of purchases 
they make, and so on. Far be it from me to claim that this wider 
notion is of no interest; that a state can arise by a process that fits 
this wider notion (without fitting the narrower one) is of very 
great interest indeed! 

The view we present here should not be confused with other 
views. It differs from social compact views in its invisible-hand 
structure. It differs from views that “de facto might makes state 



Further Considerations on the Argument for the State 


133 


(legal) right” in holding that enforcement rights and rights to 
oversee this enforcement exist independently and are held by all 
rather than confined to one or a small group, and that the process 
of accumulating sole effective enforcement and overseeing power 
may take place without anyone’s rights being violated; that a state 
may arise by a process in which no one’s rights are violated. Shall 
we say that a state which has arisen from a state of nature by the 
process described has replaced the state of nature which therefore 
no longer exists, or shall we say that it exists within a state of na- 
ture and hence is compatible with one? No doubt, the first would 
better fit the Lockean tradition; but the state arises so gradually 
and imperceptibly out of Locke’s state of nature, without any great 
or fundamental breach of continuity, that one is tempted to take the 
second option, disregarding Locke’s incredulousness: "... unless 
any one will say the state of nature and civil society are one and 
the same thing, which I have never yet found any one so great a 
patron of anarchy as to affirm” (sect. 94). 


LEGITIMACY 

Some might deny, perhaps properly, that any normative notion is 
to be built into an account of the state, even the right to enforce 
rights and to prohibit dangerous private enforcement of justice 
provided compensation is made to those prohibited. But since this 
does not grant to the state or any of its agents any rights not pos- 
sessed by each and every person, it seems a harmless inclusion. It 
gives the state no special rights and certainly does not entail that 
all acts of rule by the state are presumptively right. Nor does it 
entail that persons acting as agents of the state possess any special 
immunity from punishment, if they violate another’s rights. The 
public whose agents they are may provide them with liability in- 
surance, or guarantee to cover their liability. But it may not 
diminish their liability as compared to that of other persons. Also, 
protective agencies will not have limited liability, nor will any 
other corporations. Those voluntarily dealing with a corporation 
(customers, creditors, workers, and others) will do so by contracts 
explicitly limiting the corporation’s liability, if that is the way the 



J 34 


State-of -Nature Theory 


corporation chooses to do business. A corporation’s liability to 
those involuntarily intertwined with it will be unlimited, and it 
presumably will choose to cover this liability with insurance poli- 
cies. 

Does the state we have described have legitimacy, does it legiti- 
mately rule? The dominant protective agency has de facto power; it 
acquired this power and reached its position of dominance without 
violating anyone’s rights; it wields this power as well as anyone 
would expect. Do these facts add up to its being the legitimate 
wielder of the power? As “legitimacy” is used in political theory, 
those legitimately wielding power are entitled, are specially en- 
titled, to wield it.* Does the dominant protective agency have any 
special entitlement? A dominant agency and another tiny one, or a 
dominant agency and an unaffiliated individual person, are on a 
par in the nature of their rights to enforce other rights. How 
might they have differential entitlements? 

Consider whether the dominant protective agency is entitled to 
be the one which is dominant. Is a restaurant you choose to go to 
on a given evening entitled to your patronage? Perhaps one is 
tempted to say, in some circumstances, they merit it or deserve it; 
they serve better food, less expensively, and in nicer surroundings, 
and they work long and hard to do so; still, they are not entitled 
to your patronage . 10 You do not violate any entitlement of theirs 
if you choose to go elsewhere. By choosing to go there, though, 
you do authorize them to serve and bill you. They have no en- 
titlement to be the one which serves you, but they are entitled to 
serve you. Similarly, we must distinguish between an agency’s 
being entitled to be the one wielding certain power from its being 
entitled to wield that power . 11 Is the dominant agency’s only en- 
titlement, then, its being entitled to wield the power? We can 
reach questions of entitlement by another route that illuminates 
further the situation of persons in a state of nature. 

A protective agency may act against or for a particular person. 


* Attempts to explain the notion of legitimacy of government in terms of 
the attitudes and beliefs of its subjects have a difficult time avoiding the rein- 
troduction of the notion of legitimacy when it comes time to explain the 
precise content of the subjects’ attitudes and beliefs; though it is not too dif- 
ficult to make the circle somewhat wider than the flat: a legitimate government 
is one that most of its subjects view as legitimately ruling. 



Further Considerations on the Argument for the State 


135 


It acts against him if it enforces someone’s rights against him, 
punishes him, exacts compensation from him, and so forth. It acts 
for him if it defends him against others, punishes others for violat- 
ing his rights, forces other to compensate him, and so forth. 
Theorists of the state of nature hold that there are certain rights 
residing in the victim of wrong that others may exercise only if au- 
thorized by him; and there are other rights that others may exer- 
cise, whether or not the victim authorized them to do so. The 
right to exact compensation is of the first sort; the right to punish 
of the second. If the victim chooses not to be compensated, no one 
else may exact compensation for him or for themselves in his 
place. But if the victim does wish to be compensated, why may 
only those whom he has authorized to act for him exact compensa- 
tion? Clearly, if several different persons each exact full compensa- 
tion from the offender, this would do him an injustice. How then 
is it to be determined which person acts? Is the one who may act 
the one who acts first to exact sufficient compensation for the vic- 
tim? But allowing many to compete to be the first successfully to 
exact compensation will embroil prudent wrongdoers and victims 
alike in many independent time- and energy-consuming hearing 
processes, only one of which actually will result in a compensation 
payment. Alternatively, perhaps the person who first begins the 
attempt to exact compensation preempts the field; no others may 
also engage in the process. But this would allow the wrongdoer 
himself to have a confederate be the first to start compensation 
proceedings (which would be long, complicated, and perhaps in- 
conclusive) in order to stop others from exacting compensation 
from him. 

In theory, an arbitrary rule could be used to select anyone as the 
one to exact (or to authorize another to exact) compensation — for 
example, “the exacter of compensation is to be that person whose 
name comes immediately after that of the victim in an alphabetical 
listing of the names of everyone in the territory.” (Would this lead 
to people victimizing their immediate alphabetical predecessors?) 
That it be the victim who selects the exacter of compensation en- 
sures, at least, that he will be committed to rest content with the 
upshot of the process and will not continue to attempt to get fur- 
ther compensation. The victim will not believe he selected a pro- 
cess by nature unfair to himself; or if he comes to believe this, he 



136 


State-of-Nature Theory 


will have only himself to blame. It is to the advantage of the 
wrongdoer that the victim be involved in, and committed to, the 
process, for otherwise the victim will initiate a second process to 
obtain the remainder of what he believes he deserves. The victim 
can be expected to accede to a restriction against double jeopardy 
only if the initial process is one he is committed to and has some 
confidence in, as would not be the case if a confederate of the 
wrongdoer made the initial judgment. But what is wrong with 
double jeopardy, given that if its upshot is unjust the person 
punished can act himself? And, why cannot a victim place his 
wrongdoer under double jeopardy, even though the first process 
was one that he himself had authorized? Cannot the victim say 
that he had authorized another to exact his just compensation, and 
that since the agent failed to do this fully, he himself is within his 
rights to authorize yet another to act? If the first person he sends 
against a wrongdoer fails to reach him, he may send another; if he 
reaches him but is bought off, the victim may send another; why 
may he not send another if his first agent fails to perform his task 
adequately? To be sure, if he does send another to exact something 
above and beyond what his first agent attempted to take, he runs 
the risk that others will think his added exaction unjust and so 
will oppose him. But are there other than prudential grounds for 
his not doing so? There is reason against double jeopardy in a civic 
legal system as it is usually imagined. Since all it takes is one con- 
viction, it is unfair to allow the prosecution to keep trying and 
trying until it succeeds. This would not apply in the state of na- 
ture, where the matter is not settled absolutely and is not binding 
upon all when the victim’s agent or agency reaches a judgment. It 
is unfair to give the prosecutor in a civic system many chances at a 
final and binding judgment, for if he is lucky one time there will 
be little recourse for the person found guilty. However, in a state 
of nature there is recourse for someone who holds the decision 
against himself unjust . 12 But even though there is no guarantee 
that a victim will regard his agent’s decision as acceptable, it is 
more likely than his so regarding that of some unknown third 
party; and so his selecting the exacter of compensation is a step 
toward ending the affair. (His antagonist also might agree to ac- 
cept the result.) There is yet another reason, perhaps the major 
one, for the victim's being the appropriate locus of action to exact 



Further Considerations on the Argument for the State 


137 


compensation. The victim is the one to whom compensation is 
owed, not only in the sense that the money goes to him, but also 
in that the other is under an obligation to him to pay it. (These are 
distinct: I may be under an obligation to you to pay another per- 
son money, having promised to you that I would pay him.) As the 
person to whom this enforceable obligation is owed, the victim 
seems the appropriate party to determine precisely how it is to be 
enforced. 


THE RIGHT OF ALL TO PUNISH 

In contrast to exaction of compensation, which it views as some- 
thing done appropriately only by the victim or his authorized 
agent, state-of-nature theory usually views punishment as a func- 
tion that anyone may perform. Locke realizes that this “will seem 
a very strange doctrine to some men” (sect. 9). He defends it by 
saying that the law of nature would be in vain if no one in a state 
of nature had a power to execute it, and since all in the state of na- 
ture have equal rights, if any one person may execute it then ev- 
eryone has that right (sect. 7); he says also that an offender 
becomes dangerous to mankind in general, and so everyone may 
punish him (sect. 8), and he challenges the reader to find some 
other ground for a country’s punishing aliens for crimes they com- 
mit within it. Is the general right to punish so counterintuitive? If 
some great wrong were committed in another country which re- 
fuses to punish it (perhaps the government is in league with, or is 
itself, the wrongdoer), wouldn’t it be all right for you to punish 
the wrongdoer, to inflict some harm on him for his act? Further- 
more, one might try to derive the right to punish from other 
moral considerations: from the right to protect, combined with 
the view that a wrongdoer’s moral boundaries change. One might 
take a contract-like view of moral prohibitions and hold that those 
who themselves violate another’s boundaries forfeit the right to 
have certain of their own boundaries respected. On this view, one 
is not morally prohibited from doing certain sorts of things to 
others who have already violated certain moral prohibitions (and 
gone unpunished for this). Certain wrongdoing gives others a liberty 



i 3 8 


State-of -Nature Theory 


to cross certain boundaries (an absence of a duty not to do it); the 
details might be those of some retributive view . 13 Talk of a right 
to punish may seem strange if we interpret it strongly as a right 
which others must not happen to interfere with or themselves ex- 
ercise, rather than as a liberty to do it, which liberty others 
also may have. The stronger interpretation of right is un- 
necessary; the liberty to punish would give Locke much of what he 
needs, perhaps all if we add the duty of the wrongdoer not to 
resist his punishment. We may add to these reasons which make 
more plausible the claim that there is a general right to punish the 
consideration that, unlike compensation, punishment is not owed 
to the victim (though he may be the person most greatly inter- 
ested in its being carried out), and so it is not something he has 
special authority over. 

How would a system of open punishment operate? All of our 
previous difficulties in imagining how open exaction of compensa- 
tion would work apply as well to a system of open punishing. And 
there are other difficulties. Is it to be a system of the first actor’s 
preempting the field? Will sadists compete to be first to get their 
licks in? This would greatly magnify the problem of keeping the 
punishers from exceeding the bounds of the deserved punishment 
and would be undesirable, the opportunities it offers for cheerful 
and unalienated labor notwithstanding. In a system of open pun- 
ishment would anyone be in a position to decide upon mercy; and 
would another be permitted to negate this decision by punishing 
additionally so long as the sum did not exceed the amount de- 
served? Could the offender have a confederate punish him only 
lightly? Would there be any likelihood that the victim would feel 
that justice had been done? And so on. 

If a system that leaves punishment to whomever happens to do 
it is defective, how is it to be decided who, among all those 
willing and perhaps eager, punishes? It might be thought that, as 
before, it should be the victim or his authorized agent. Yet 
though the victim occupies the unhappy special position of victim 
and is owed compensation, he is not owed punishment. (That is 
“owed” to the person who deserves to be punished.) The offender 
is not under an obligation to the victim to be punished; he doesn’t 
deserve to be punished “to the victim.” So why should the victim 
have a special right to punish or to be the punisher? If he has no 



Further Considerations on the Argument for the State 


139 


special right to punish, does he have any special right to choose 
that the punishment not be carried out at all, or that mercy be 
granted? May someone punish an offender even against the wishes 
of the offended party who morally objects to the mode of punish- 
ment? If a Gandhian is attacked, may others defend him by means 
he morally rejects? Others too are affected; they are made fearful 
and less secure if such crimes go unpunished. Should the fact that 
the victim was the one most affected by the crime give him a 
special status with regard to punishing the offender? (Are the 
others affected by the crime, or only by its going unpunished?) If 
the victim was killed does the special status devolve upon the 
closest kin? If there are two victims of a murderer, do each of the 
next of kin have a right to punish him with death, with a compe- 
tition for who will be the first to act? Perhaps then, rather than its 
being the case that anyone may punish or that the victim alone has 
authority to punish, the solution is that all concerned (namely, ev- 
eryone) jointly act to punish or to empower someone to punish. 
But this would require some institutional apparatus or mode of 
decision within the state of nature itself. And, if we specify this as 
everyone’s having a right to a say in the ultimate determination of 
punishment, this would be the only right of this sort which people 
possessed in a state of nature; it would add up to a right (the right 
to determine the punishment) possessed by people jointly rather 
than individually. There seems to be no neat way to understand 
how the right to punish would operate within a state of nature. 
From this discussion of who may exact compensation and who may 
punish emerges another avenue to the question of a dominant pro- 
tective association’s entitlement. 

The dominant protective association is authorized by many per- 
sons to act as their agent in exacting compensation for them. It is 
entitled to act for them, whereas a small agency is entitled to act 
for fewer persons, and an individual is entitled to act only for him- 
self. In this sense of having a greater number of individual en- 
titlements, but a kind that others have as well, the dominant pro- 
tective agency has a greater entitlement. Something more can be 
said, given the unclarity about how rights to punish operate in a 
state of nature. To the extent that it is plausible that all who have 
some claim to a right to punish have to act jointly, then the domi- 
nant agency will be viewed as having the greatest entitlement to 



140 


State-of -Nature Theory 


exact punishment, since almost all authorize it to act in their 
place. In exacting punishment it displaces and preempts the ac- 
tions to punish of the fewest others. Any private individual who 
acts will exclude the actions and entitlements of all the others; 
whereas very many people will feel their entitlement is being exer- 
cised when their agent, the dominant protective agency, acts. This 
would account for thinking that the dominant protective agency or 
a state has some special legitimacy. Having more entitlements to 
act, it is more entitled to act. But it is not entitled to be the dom- 
inant agency, nor is anyone else. 

We should note one further possible source of viewing some- 
thing as the legitimate locus of the exercise of enforcing power. To 
the extent that individuals view choosing a protective agency as a 
coordination game, with advantages to their quickly converging 
upon the same one, though it doesn’t matter very much which 
one, they may think the one that happened to be settled upon is 
the appropriate or proper one now to look to for protection. Con- 
sider a neighborhood meeting place for teenagers. It may not mat- 
ter very much where the place is, so long as everyone knows the 
place where others will congregate, depending upon others to go 
there if anywhere. That place becomes “the place to go” to meet 
others. It is not only that you will be more likely to be unsuccess- 
ful if you look elsewhere; it is that others benefit from, and count 
upon, your converging upon that place, and similarly you benefit 
from, and count upon, their congregating there. It is not entitled 
to be the meeting place; if it is a store its owner is not entitled to 
have his store be the one at which people congregate. It is not that 
individuals must meet there. It’s just the place to meet. Similarly, 
one might imagine a given protective agency’s becoming the one 
to be protected by. To the extent that people attempt to coordi- 
nate their actions and converge upon a protective agency which 
will have all as clients, the process is, to that extent, not fully an 
invisible-hand one. And there will be intermediate cases, where 
some view it as a coordination game, and others, oblivious of this, 
merely react to local signals . 14 

When only one agency actually exercises the right to prohibit 
others from using their unreliable procedures for enforcing justice, 
that makes it the de facto state. Our rationale for this prohibition 
rests on the ignorance, uncertainty, and lack of knowledge of peo- 



Further Considerations on the Argument for the State 141 

pie. In some situations, it is not known whether a particular per- 
son performed a certain action, and procedures for finding this out 
differ in reliability or fairness. We may ask whether, in a world of 
perfect factual knowledge and information, anyone could legiti- 
mately claim the right (without claiming to be its sole possessor) 
to prohibit another from punishing a guilty party. Even given fac- 
tual agreement, there might be disagreement about what amount 
of punishment a particular act deserved, and about which acts 
deserved punishment. I have proceeded in this essay (as much as 
possible) without questioning or focusing upon the assumption 
common to much utopian and anarchist theorizing, that there is 
some set of principles obvious enough to be accepted by all men of 
good will, precise enough to give unambiguous guidance in par- 
ticular situations, clear enough so that all will realize its dictates, 
and complete enough to cover all problems that actually will arise. 
To have rested the case for the state on the denial of such an as- 
sumption would have left the hope that the future progress of hu- 
manity (and moral philosophy) might yield such agreement, and 
so might undercut the rationale for the state. Not only does the 
day seem distant when all men of good will shall agree to liber- 
tarian principles; these principles have not been completely stated, 
nor is there now one unique set of principles agreed to by all 
libertarians. Consider for example, the issue of whether full- 
blooded copyright is legitimate. Some libertarians argue it isn’t le- 
gitimate, but claim that its effect can be obtained if authors and 
publishers include in the contract when they sell books a provision 
prohibiting its unauthorized printing, and then sue any book 
pirate for breach of contract; apparently they forget that some peo- 
ple sometimes lose books and others find them. Other libertarians 
disagree . 15 Similarly for patents. If persons so close in general 
theory can disagree over a point so fundamental, two libertarian 
protective agencies might manage to do battle over it. One agency 
might attempt to enforce a prohibition upon a person’s publishing 
a particular book (because this violates the author’s property right) 
or reproducing a certain invention he has not invented indepen- 
dently, while the other agency fights this prohibition as a violation 
of individual rights. Disagreements about what is to be enforced, 
argue the unreluctant archists, provide yet another reason (in addi- 
tion to lack of factual knowledge) for the apparatus of the state; as 



142 


State-of-Nature Theory 


also does the need for sometimes changing the content of what is 
to be enforced. People who prefer peace to the enforcement of their 
view of right will unite together in one state. But of course, if peo- 
ple genuinely do hold this preference, their protective agencies will 
not do battle either. 


PREVENTIVE RESTRAINT 

Finally, let us notice how the issue of “preventive detention” or 
“preventive restraint” is related to the principle of compensation 
(Chapter 4) and to our discussion in Chapter 5 of the extensive 
protection it requires the ultraminimal state to provide, even for 
those who do not pay. The notion should be widened to include 
all restrictions on individuals in order to lessen the risk that they 
will violate others’ rights; call this widened notion “preventive re- 
straint.” Included under this would be requiring some individuals 
to report to an official once a week (as if they were on parole), for- 
bidding some individuals from being in certain places at certain 
hours, gun control laws, and so on (but not laws forbidding the 
publication of the plans of bank alarm systems). Preventive deten- 
tion would encompass imprisoning someone, not for any crime he 
has committed, but because it is predicted of him that the proba- 
bility is significantly higher than normal that he will commit a 
crime. (His previous crimes may be part of the data on the basis of 
which the predictions are made.) 

If such preventive restraints are unjust this cannot be because 
they prohibit before the fact activities which though dangerous 
may turn out to be harmless. For an enforceable legal system that 
includes prohibitions on private enforcement of justice is itself based upon 
preventive considerations. 16 It cannot be claimed that such consid- 
erations, underlying the existence of all legal systems which pro- 
hibit self-help justice, are incompatible with the existence of a just 
legal system; not, at any rate, if one wishes to maintain that there 
can be a just legal system. Are there grounds for condemning 
preventive restraints as unjust that do not apply as strongly also to 
the prohibitions upon private justice that underlie the existence of 
every state’s legal system? I do not know if preventive restraints 



Further Considerations on the Argument for the State 


M3 


can be distinguished, on grounds of justice, from other similar 
danger-reducing prohibitions which are fundamental to legal sys- 
tems. Perhaps we are helped by our discussion early in this chapter 
of principles that distinguish actions or processes where no further 
decision for wrong is to be made from processes where wrong 
occurs only if the person later decides to do wrong. To the extent 
that some people are viewed as incapable of making a future deci- 
sion and are viewed merely as mechanisms now set into operation 
which will (or may) perform wrong actions (or to the extent that 
they are viewed as incapable of deciding against acting wrongly?), 
then preventive restraint possibly will seem legitimate. Provided 
disadvantages are compensated for (see below), preventive restraint 
will be allowed by the same considerations that underlie the exis- 
tence of a legal system. (Though other considerations may rule it 
out.) But if the evil (it is feared) the person may do really does 
hinge upon decisions for wrong which he has not yet made, then 
the earlier principles will rule preventive detention or restraint il- 
legitimate and impermissible.* 

Even if preventive restraint cannot be distinguished on grounds 
of justice from the similar prohibitions underlying legal systems, 
and if the risk of danger is significant enough to make intervening 
via prohibition permissible, still, those prohibiting in order to 
gain increased security for themselves must compensate those prohi- 
bited (who well might not actually harm anyone) for the disadvan- 
tages imposed upon them by the prohibitions. This follows from, 
and is required by, the principle of compensation of Chapter 4. In 
the case of minor prohibitions and requirements, such compensa- 
tion might be easy to provide (and perhaps should be provided in 
these cases even when they do not constitute a disadvantage ). Other 
measures, including curfews upon some persons and specific re- 
strictions on their activities, would require substantial compensa- 
tion. It will be almost impossible for the public to provide com- 
pensation for the disadvantages imposed upon someone who is 
incarcerated as a preventive restraint. Perhaps only by setting aside 
a pleasant area for such persons predicted to be highly dangerous, 


* Does this hold even if the restrainers make full compensation, returning 
the restrained to at least as high an indifference curve as he would have oc- 
cupied, instead of merely compensating for tint disadvantages imposed? 



144 


State-of -Nature Theory 


which though fenced and guarded contains resort hotels, recrea- 
tional facilities, and so forth, can this requirement of compensat- 
ing for disadvantages imposed be met. (According to our earlier 
discussion, it might be permissible to charge these persons a fee 
not higher than their normal rent and food bills in the wider soci- 
ety. But this would not be permissible if the person could not con- 
tinue to earn income comparable to his outside income, for this 
charge then would deplete all of his financial resources.) Such a de- 
tention center would have to be an attractive place to live; when 
numbers of people attempt to get sent to it one can conclude it has 
been made more than luxurious enough to compensate someone for 
the disadvantages of being prohibited from living among others in 
the wider society.* I do not discuss here the details of such a 
scheme, the theoretical difficulties (for example, some would be 
more disadvantaged than others by being removed from the wider 
society), and the possible moral objections (for example, are some- 
one’s rights violated when he is sent to a place along with all those 
other dangerous people? Can increased luxuriousness compensate 
for the increased danger?). For I mention resort detention centers 
not to propose them, but to show the sort of things proponents of 
preventive detention must think about and be willing to counte- 
nance and pay for. The fact that the public must compensate per- 
sons it preventively restrains for the disadvantages it imposes upon 
them in those cases (// any) where it legitimately may so restrain 
them would presumably act as a serious check upon the public’s 
imposing such restraints. We may condemn immediately any 
scheme of preventive restraints that does not include provisions for 
making such compensation in adequate amount. When combined 
with our conclusions in the preceding paragraph, this leaves little, 
if any, scope for legitimate preventive restraint. 

A brief discussion of some objections to this view of preventive 


* Since only the disadvantages need to be compensated for, perhaps some- 
what less than a place people would choose would suffice. However, with a 
change as drastic as detention in a community, it will be difficult to estimate 
the extent of the disadvantages. If to be disadvantaged means to be hampered, 
as compared to others, with regard to certain activities, a restriction as severe as 
detention probably will require full compensation for disadvantages. Perhaps 
only when a place lures some will one be in a position to think it compensates 
all who are there for their disadvantages. 



Further Considerations on the Argument for the State 


145 


restraint will enable us to bring to bear considerations we have 
treated earlier in other contexts. We may wonder whether it ever 
could be permissible for some people preventively to restrain oth- 
ers, even if they compensate these others for the disadvantages im- 
posed upon them. Instead of a system of preventive restraint, why 
mustn’t those who desire that others be restrained preventively 
hire (pay) them to undergo the restraints? Since this exchange 
would satisfy the first necessary condition for an “unproductive” 
exchange (see Chapter 4), and since what one party (who is no bet- 
ter off as a result of the exchange than if the other party had 
nothing at all to do with him) gains is only a lessened probability 
of undergoing what would be a prohibited border crossing if done 
intentionally, our earlier arguments for market determination of 
the division of the mutual benefits of exchange do not apply. In- 
stead, we have here a candidate for prohibition with compensation; 
more strongly (according to our discussion in Chapter 4), for 
prohibition with compensation only for the disadvantages im- 
posed. Secondly, in many preventive restraint situations, the 
“product” (namely, his being restrained) can be supplied only by 
that party. There isn’t, and couldn’t be, some other person, some 
competitor, who could sell you that if the first person’s price was 
too high. It is difficult to see why in these cases of nonproductive 
exchange (at least by the first necessary condition), monopoly pric- 
ing should be viewed as the appropriate model for distributing the 
benefits. If, however, the goal of a preventive-restraint program is 
to bring the total probability of danger to others beneath a certain 
threshold, rather than to restrain every dangerous person who 
makes more than a fixed minimal contribution to this total 
danger, then this might be accomplished without all of them 
being restrained. If enough were hired, this would bring the total 
danger posed by the others to below the threshold. In such situa- 
tions, the candidates for preventive restraint would have some 
reason to compete in price with each other, for they would occupy 
a somewhat less commanding market position. 

Even if the restrainers need not reach a voluntary bilateral agree- 
ment with those they restrain, why aren’t they at least required not 
to move those they restrain to a lower indifference curve? Why is 
it required only that compensation be made for the disadvantages 
imposed? One might view compensation for disadvantages as a 



146 


State-of -Nature Theory 


compromise arrived at because one cannot decide between two at- 
tractive but incompatible positions: (1) no payment, because dan- 
gerous persons may be restrained and so there is a right to restrain 
them; (2) full compensation, because the person might live unre- 
strained without actually harming anyone, and so there is no right 
to restrain him. But prohibition with compensation for disadvan- 
tages is not a “split the difference” compromise between two 
equally attractive alternative positions, one of which is correct but 
we don’t know which. Rather, it seems to me to be the correct 
position that fits the (moral) vector resultant of the opposing 
weighty considerations, each of which must be taken into account 
somehow. * 

This concludes this chapter’s consideration of objections to our 
argument which led to the minimal state, as well as our applica- 
tion of the principles developed in that argument to other issues. 
Having gotten from anarchy to the minimal state, our next major 
task is to establish that we should proceed no further. 


* What if the public is too impoverished to compensate those who unre- 
strained would be very dangerous? Cannot a subsistence farming community 
preventively restrain anyone? Yes they may; but only if the restrainers give over 
enough in an attempt to compensate, so as to make about equivalent their own 
lessened positions (lessened by their giving up goods and placing them into the 
compensation pool) and the positions (with compensation) of those restrained. 
The restrained are still somewhat disadvantaged, but no more than everyone 
else. A society is impoverished with regard to a preventive restraint if those re- 
straining cannot compensate those restrained for the disadvantages they impose 
without themselves moving into a position that is disadvantaged; that is, with- 
out themselves moving into a position which would have been disadvantaged 
had only some persons been moved into it. Impoverished societies must carry 
compensation for disadvantages until the positions of those restrained and those 
unrestrained are made equivalent. The concept of "equivalence” here can be 
given different glosses: made equally disadvantaged in absolute position (which 
gloss may seem unreasonably strong in view of the fact that some of those 
unrestrained may start off in quite a high position); lowered by equal intervals; 
lowered by the same percentages, as judged against some base line. Becoming 
clear about these complicated issues would require investigating them far 
beyond their marginal importance to our central concerns in this book. Since 
Alan Dershowitz informs me that the analysis in the second volume of his forth- 
coming extensive work on preventive considerations in the law parallels parts of 
our discussion in these pages, we can suggest that the reader look there for fur- 
ther consideration of the issues. 



PART 

II 


Beyond the Minimal State ? 





CHAPTER 

7 


Distributive Justice 


JLHE minimal state is the most extensive state that can be 
justified. Any state more extensive violates people’s rights. Yet 
many persons have put forth reasons purporting to justify a more 
extensive state. It is impossible within the compass of this book to 
examine all the reasons that have been put forth. Therefore, I shall 
focus upon those generally acknowledged to be most weighty and 
influential, to see precisely wherein they fail. In this chapter we 
consider the claim that a more extensive state is justified, because 
necessary (or the best instrument) to achieve distributive justice; in 
the next chapter we shall take up diverse other claims. 

The term “distributive justice” is not a neutral one. Hearing 
the term “distribution,” most people presume that some thing or 
mechanism uses some principle or criterion to give out a supply of 
things. Into this process of distributing shares some error may 
have crept. So it is an open question, at least, whether redistri- 
bution should take place; whether we should do again what has al- 
ready been done once, though poorly. However, we are not in the 
position of children who have been given portions of pie by some- 
one who now makes last minute adjustments to rectify careless 
cutting. There is no central distribution, no person or group en- 
titled to control all the resources, jointly deciding how they are to 
be doled out. What each person gets, he gets from others who 
give to him in exchange for something, or as a gift. In a free soci- 


149 



I 5° 


Beyond the Minimal State? 


ety, diverse persons control different resources, and new holdings 
arise out of the voluntary exchanges and actions of persons. There 
is no more a distributing or distribution of shares than there is a 
distributing of mates in a society in which persons choose whom 
they shall marry. The total result is the product of many individ- 
ual decisions which the different individuals involved are entitled 
to make. Some uses of the term “distribution,” it is true, do not 
imply a previous distributing appropriately judged by some crite- 
rion (for example, “probability distribution”); nevertheless, de- 
spite the title of this chapter, it would be best to use a terminol- 
ogy that clearly is neutral. We shall speak of people’s holdings; a 
principle of justice in holdings describes (part of) what justice tells 
us (requires) about holdings. I shall state first what I take to be the 
correct view about justice in holdings, and then turn to the discus- 
sion of alternate views . 1 


SECTION I 


THE ENTITLEMENT THEORY 

The subject of justice in holdings consists of three major topics. 
The first is the original acquisition of holdings, the appropriation of un- 
held things. This includes the issues of how unheld things may 
come to be held, the process, or processes, by which unheld things 
may come to be held, the things that may come to be held by 
these processes, the extent of what comes to be held by a particular 
process, and so on. We shall refer to the complicated truth about 
this topic, which we shall not formulate here, as the principle of 
justice in acquisition. The second topic concerns the transfer of 
holdings from one person to another. By what processes may a per- 
son transfer holdings to another? How may a person acquire a 
holding from another who holds it? Under this topic come general 
descriptions of voluntary exchange, and gift and (on the other 
hand) fraud, as well as reference to particular conventional details 
fixed upon in a given society. The complicated truth about this sub- 
ject (with placeholders for conventional details) we shall call the 
principle of justice in transfer. (And we shall suppose it also in- 



Distributive Justice 


151 

eludes principles governing how a person may divest himself of a 
holding, passing it into an unheld state.) 

If the world were wholly just, the following inductive definition 
would exhaustively cover the subject of justice in holdings. 

1 . A person who acquires a holding in accordance with the principle of 
justice in acquisition is entitled to that holding. 

2. A person who acquires a holding in accordance with the principle of 
justice in transfer, from someone else entitled to the holding, is en- 
titled to the holding. 

3. No one is entitled to a holding except by (repeated) applications of 
1 and 2. 

The complete principle of distributive justice would say simply 
that a distribution is just if everyone is entitled to the holdings 
they possess under the distribution. 

A distribution is just if it arises from another just distribution 
by legitimate means. The legitimate means of moving from one 
distribution to another are specified by the principle of justice in 
transfer. The legitimate first “moves” are specified by the principle 
of justice in acquisition.* Whatever arises from a just situation by 
just steps is itself just. The means of change specified by the prin- 
ciple of justice in transfer preserve justice. As correct rules of infer- 
ence are truth-preserving, and any conclusion deduced via repeated 
application of such rules from only true premisses is itself true, so 
the means of transition from one situation to another specified by 
the principle of justice in transfer are justice-preserving, and any 
situation actually arising from repeated transitions in accordance 
with the principle from a just situation is itself just. The parallel 
between justice-preserving transformations and truth-preserving 
transformations illuminates where it fails as well as where it holds. 
That a conclusion could have been deduced by truth-preserving 
means from premisses that are true suffices to show its truth. That 
from a just situation a situation could have arisen via justice- 
preserving means does not suffice to show its justice. The fact that 
a thief’s victims voluntarily could have presented him with gifts 


* Applications of the principle of justice in acquisition may also occur as 
part of the move from one distribution to another. You may find an unheld 
thing now and appropriate it. Acquisitions also are to be understood as included 
when, to simplify, I speak only of transitions by transfers. 



152 


Beyond the Minimal State? 

does not entitle the thief to his ill-gotten gains. Justice in hold- 
ings is historical; it depends upon what actually has happened. We 
shall return to this point later. 

Not all actual situations are generated in accordance with the 
two principles of justice in holdings: the principle of justice in 
acquisition and the principle of justice in transfer. Some people 
steal from others, or defraud them, or enslave them, seizing their 
product and preventing them from living as they choose, or forc- 
ibly exclude others from competing in exchanges. None of these 
are permissible modes of transition from one situation to another. 
And some persons acquire holdings by means not sanctioned by 
the principle of justice in acquisition. The existence of past injus- 
tice (previous violations of the first two principles of justice in 
holdings) raises the third major topic under justice in holdings: 
the rectification of injustice in holdings. If past injustice has 
shaped present holdings in various ways, some identifiable and 
some not, what now, if anything, ought to be done to rectify these 
injustices? What obligations do the performers of injustice have 
toward those whose position is worse than it would have been had 
the injustice not been done? Or, than it would have been had 
compensation been paid promptly? How, if at all, do things 
change if the beneficiaries and those made worse off are not the 
direct parties in the act of injustice, but, for example, their de- 
scendants? Is an injustice done to someone whose holding was it- 
self based upon an unrectified injustice? How far back must one go 
in wiping clean the historical slate of injustices? What may vic- 
tims of injustice permissibly do in order to rectify the injustices 
being done to them, including the many injustices done by per- 
sons acting through their government? I do not know of a thor- 
ough or theoretically sophisticated treatment of such issues . 2 Ideal- 
izing greatly, let us suppose theoretical investigation will produce 
a principle of rectification. This principle uses historical informa- 
tion about previous situations and injustices done in them (as 
defined by the first two principles of justice and rights against in- 
terference), and information about the actual course of events that 
flowed from these injustices, until the present, and it yields a 
description (or descriptions) of holdings in the society. The princi- 
ple of rectification presumably will make use of its best estimate of 
subjunctive information about what would have occurred (or a 



Distributive Justice 


153 


probability distribution over what might have occurred, using the 
expected value) if the injustice had not taken place. If the actual 
description of holdings turns out not to be one of the descriptions 
yielded by the principle, then one of the descriptions yielded must 
be realized.* 

The general outlines of the theory of justice in holdings are that 
the holdings of a person are just if he is entitled to them by the 
principles of justice in acquisition and transfer, or by the principle 
of rectification of injustice (as specified by the first two principles). 
If each person’s holdings are just, then the total set (distribution) of 
holdings is just. To turn these general outlines into a specific 
theory we would have to specify the details of each of the three 
principles of justice in holdings: the principle of acquisition of 
holdings, the principle of transfer of holdings, and the principle of 
rectification of violations of the first two principles. I shall not at- 
tempt that task here. (Locke’s principle of justice in acquisition is 
discussed below.) 


HISTORICAL PRINCIPLES 
AND END-RESULT PRINCIPLES 

The general outlines of the entitlement theory illuminate the na- 
ture and defects of other conceptions of distributive justice. The 
entitlement theory of justice in distribution is historical; whether a 
distribution is just depends upon how it came about. In contrast, 
current time-slice principles of justice hold that the justice of a dis- 
tribution is determined by how things are distributed (who has 
what) as judged by some structural principle(s) of just distribution. 
A utilitarian who judges between any two distributions by seeing 


* If the principle of rectification of violations of the first two principles 
yields more than one description of holdings, then some choice must be made as 
to which of these is to be realized. Perhaps the sort of considerations about dis- 
tributive justice and equality that I argue against play a legitimate role in this 
subsidiary choice. Similarly, there may be room for such considerations in 
deciding which otherwise arbitrary features a statute will embody, when such 
features are unavoidable because other considerations do not specify a precise 
line; yet a line must be drawn. 



154 


Beyond the Minimal State? 


which has the greater sum of utility and, if the sums tie, applies 
some fixed equality criterion to choose the more equal distribution, 
would hold a current time-slice principle of justice. As would 
someone who had a fixed schedule of trade-offs between the sum of 
happiness and equality. According to a current time-slice princi- 
ple, all that needs to be looked at, in judging the justice of a dis- 
tribution, is who ends up with what; in comparing any two dis- 
tributions one need look only at the matrix presenting the dis- 
tributions. No further information need be fed into a principle of 
justice. It is a consequence of such principles of justice that any 
two structurally identical distributions are equally just. (Two dis- 
tributions are structurally identical if they present the same pro- 
file, but perhaps have different persons occupying the particular 
slots. My having ten and your having five, and my having five and 
your having ten are structurally identical distributions.) Welfare 
economics is the theory of current time-slice principles of justice. 
The subject is conceived as operating on matrices representing 
only current information about distribution. This, as well as some 
of the usual conditions (for example, the choice of distribution is 
invariant under relabeling of columns), guarantees that welfare 
economics will be a current time-slice theory, with all of its ina- 
dequacies. 

Most persons do not accept current time-slice principles as con- 
stituting the whole story about distributive shares. They think it 
relevant in assessing the justice of a situation to consider not only 
the distribution it embodies, but also how that distribution came 
about. If some persons are in prison for murder or war crimes, we 
do not say that to assess the justice of the distribution in the soci- 
ety we must look only at what this person has, and that person 
has, and that person has, ... at the current time. We think it 
relevant to ask whether someone did something so that he deserved 
to be punished, deserved to have a lower share. Most will agree to 
the relevance of further information with regard to punishments and 
penalties. Consider also desired things. One traditional socialist 
view is that workers are entitled to the product and full fruits of 
their labor; they have earned it; a distribution is unjust if it does 
not give the workers what they are entitled to. Such entitlements 
are based upon some past history. No socialist holding this view 
would find it comforting to be told that because the actual dis- 



Distributive Justice 


155 


tribution A happens to coincide structurally with the one he de- 
sires D, A therefore is no less just than D; it differs only in that 
the “parasitic” owners of capital receive under A what the workers 
are entitled to under D, and the workers receive under A what the 
owners are entitled to under D, namely very little. This socialist 
rightly, in my view, holds onto the notions of earning, producing, 
entitlement, desert, and so forth, and he rejects current time-slice 
principles that look only to the structure of the resulting set of hold- 
ings. (The set of holdings resulting from what? Isn’t it implausi- 
ble that how holdings are produced and come to exist has no effect 
at all on who should hold what?) His mistake lies in his view of 
what entitlements arise out of what sorts of productive processes. 

We construe the position we discuss too narrowly by speaking 
of current time-slice principles. Nothing is changed if structural 
principles operate upon a time sequence of current time-slice pro- 
files and, for example, give someone more now to counterbalance 
the less he has had earlier. A utilitarian or an egalitarian or any 
mixture of the two over time will inherit the difficulties of his 
more myopic comrades. He is not helped by the fact that some of 
the information others consider relevant in assessing a distribution 
is reflected, unrecoverably, in past matrices. Henceforth, we shall 
refer to such unhistorical principles of distributive justice, includ- 
ing the current time-slice principles, as end-result principles or end- 
state principles. 

In contrast to end-result principles of justice, historical principles 
of justice hold that past circumstances or actions of people can 
create differential entitlements or differential deserts to things. An 
injustice can be worked by moving from one distribution to an- 
other structurally identical one, for the second, in profile the 
same, may violate people’s entitlements or deserts; it may not fit 
the actual history. 


PATTERNING 


The entitlement principles of justice in holdings that we have 
sketched are historical principles of justice. To better understand 
their precise character, we shall distinguish them from another 



156 


Beyond the Minimal State? 


subclass of the historical principles. Consider, as an example, the 
principle of distribution according to moral merit. This principle 
requires that total distributive shares vary directly with moral 
merit; no person should have a greater share than anyone whose 
moral merit is greater. (If moral merit could be not merely ordered 
but measured on an interval or ratio scale, stronger principles 
could be formulated.) Or consider the principle that results by 
substituting “usefulness to society” for “moral merit” in the pre- 
vious principle. Or instead of “distribute according to moral 
merit,” or “distribute according to usefulness to society,” we 
might consider “distribute according to the weighted sum of 
moral merit, usefulness to society, and need,” with the weights of 
the different dimensions equal. Let us call a principle of distribu- 
tion patterned if it specifies that a distribution is to vary along with 
some natural dimension, weighted sum of natural dimensions, or 
lexicographic ordering of natural dimensions. And let us say a dis- 
tribution is patterned if it accords with some patterned principle. 
(I speak of natural dimensions, admittedly without a general crite- 
rion for them, because for any set of holdings some artificial di- 
mensions can be gimmicked up to vary along with the distribution 
of the set.) The principle of distribution in accordance with moral 
merit is a patterned historical principle, which specifies a pat- 
terned distribution. “Distribute according to I.Q.” is a patterned 
principle that looks to information not contained in distributional 
matrices. It is not historical, however, in that it does not look to 
any past actions creating differential entitlements to evaluate a dis- 
tribution; it requires only distributional matrices whose columns 
are labeled by I.Q. scores. The distribution in a society, however, 
may be composed of such simple patterned distributions, without 
itself being simply patterned. Different sectors may operate dif- 
ferent patterns, or some combination of patterns may operate in 
different proportions across a society. A distribution composed in 
this manner, from a small number of patterned distributions, we 
also shall term “patterned.” And we extend the use of “pattern” to 
include the overall designs put forth by combinations of end-state 
principles. 

Almost every suggested principle of distributive justice is pat- 
terned: to each according to his moral merit, or needs, or marginal 
product, or how hard he tries, or the weighted sum of the forego- 



Distributive Justice 


157 


ing, and so on. The principle of entitlement we have sketched is 
not patterned.* There is no one natural dimension or weighted 
sum or combination of a small number of natural dimensions that 
yields the distributions generated in accordance with the principle 
of entitlement. The set of holdings that results when some persons 
receive their marginal products, others win at gambling, others re- 
ceive a share of their mate’s income, others receive gifts from foun- 
dations, others receive interest on loans, others receive gifts from 
admirers, others receive returns on investment, others make for 
themselves much of what they have, others find things, and so on, 
will not be patterned. Heavy strands of patterns will run through 
it; significant portions of the variance in holdings will be ac- 
counted for by pattern- variables. If most people most of the time 
choose to transfer some of their entitlements to others only in 
exchange for something from them, then a large part of what 
many people hold will vary with what they held that others 
wanted. More details are provided by the theory of marginal pro- 
ductivity. But gifts to relatives, charitable donations, bequests to 
children, and the like, are not best conceived, in the first instance, 
in this manner. Ignoring the strands of pattern, let us suppose for 
the moment that a distribution actually arrived at by the operation 
of the principle of entitlement is random with respect to any pat- 
tern. Though the resulting set of holdings will be unpatterned, it 
will not be incomprehensible, for it can be seen as arising from the 
operation of a small number of principles. These principles specify 
how an initial distribution may arise (the principle of acquisition 
of holdings) and how distributions may be transformed into others 


* One might try to squeeze a patterned conception of distributive justice 
into the framework of the entitlement conception, by formulating a gimmicky 
obligatory "principle of transfer" that would lead to the pattern. For example, 
the principle that if one has more than the mean income one must transfer ev- 
erything one holds above the mean to persons below the mean so as to bring 
them up to (but not over) the mean. We can formulate a criterion for a “princi- 
ple of transfer” to rule out such obligatory transfers, or we can say that no cor- 
rect principle of transfer, no principle of transfer in a free society will be like 
this. The former is probably the better course, though the latter also is true. 

Alternatively, one might think to make the entitlement conception instan- 
tiate a pattern, by using matrix entries that express the relative strength of a 
person's entitlements as measured by some real-valued function. But even if the 
limitation to natural dimensions failed to exclude this function, the resulting 
edifice would not capture our system of entitlements to particular things. 



158 Beyond the Minimal State? 

(the principle of transfer of holdings). The process whereby the 
set of holdings is generated will be intelligible, though the set of 
holdings itself that results from this process will be unpatterned. 

The writings of F. A. Hayek focus less than is usually done 
upon what patterning distributive justice requires. Hayek argues 
that we cannot know enough about each person’s situation to dis- 
tribute to each according to his moral merit (but would justice 
demand we do so if we did have this knowledge?); and he goes on 
to say, “our objection is against all attempts to impress upon soci- 
ety a deliberately chosen pattern of distribution, whether it be an 
order of equality or of inequality.” 3 However, Hayek concludes 
that in a free society there will be distribution in accordance with 
value rather than moral merit; that is, in accordance with the per- 
ceived value of a person’s actions and services to others. Despite 
his rejection of a patterned conception of distributive justice, 
Hayek himself suggests a pattern he thinks justifiable: distribution 
in accordance with the perceived benefits given to others, leaving 
room for the complaint that a free society does not realize exactly 
this pattern. Stating this patterned strand of a free capitalist soci- 
ety more precisely, we get “To each according to how much he 
benefits others who have the resources for benefiting those who 
benefit them.” This will seem arbitrary unless some acceptable ini- 
tial set of holdings is specified, or unless it is held that the opera- 
tion of the system over time washes out any significant effects from 
the initial set of holdings. As an example of the latter, if almost 
anyone would have bought a car from Henry Ford, the supposition 
that it was an arbitrary matter who held the money then (and so 
bought) would not place Henry Ford’s earnings under a cloud. In 
any event, his coming to hold it is not arbitrary. Distribution ac- 
cording to benefits to others is a major patterned strand in a free 
capitalist society, as Hayek correctly points out, but it is only a 
strand and does not constitute the whole pattern of a system of en- 
titlements (namely, inheritance, gifts for arbitrary reasons, char- 
ity, and so on) or a standard that one should insist a society fit. 
Will people tolerate for long a system yielding distributions that 
they believe are unpatterned? 4 No doubt people will not long ac- 
cept a distribution they believe is unjust. People want their society 
to be and to look just. But must the look of justice reside in a 



Distributive Justice 


159 


resulting pattern rather than in the underlying generating princi- 
ples? We are in no position to conclude that the inhabitants of a 
society embodying an entitlement conception of justice in hold- 
ings will find it unacceptable. Still, it must be granted that were 
people’s reasons for transferring some of their holdings to others 
always irrational or arbitrary, we would find this disturbing. (Sup- 
pose people always determined what holdings they would transfer, 
and to whom, by using a random device.) We feel more comfort- 
able upholding the justice of an entitlement system if most of the 
transfers under it are done for reasons. This does not mean neces- 
sarily that all deserve what holdings they receive. It means only 
that there is a purpose or point to someone’s transferring a holding 
to one person rather than to another; that usually we can see what 
the transferrer thinks he’s gaining, what cause he thinks he’s serv- 
ing, what goals he thinks he’s helping to achieve, and so forth. 
Since in a capitalist society people often transfer holdings to others 
in accordance with how much they perceive these others benefiting 
them, the fabric constituted by the individual transactions and 
transfers is largely reasonable and intelligible.* (Gifts to loved 
ones, bequests to children, charity to the needy also are nonarbi- 
trary components of the fabric.) In stressing the large strand of 
distribution in accordance with benefit to others, Hayek shows the 
point of many transfers, and so shows that the system of transfer of 
entitlements is not just spinning its gears aimlessly. The system of 
entitlements is defensible when constituted by the individual aims 
of individual transactions. No overarching aim is needed, no dis- 
tributional pattern is required. 

To think that the task of a theory of distributive justice is to fill 
in the blank in “to each according to his ” is to be predis- 


* We certainly benefit because great economic incentives operate to get 
others to spend much time and energy to figure out how to serve us by provid- 
ing things we will want to pay for. It is not mere paradox mongering to wonder 
whether capitalism should be criticized for most rewarding and hence encourag- 
ing, not individualists like Thoreau who go about their own lives, but people 
who are occupied with serving others and winning them as customers. But to 
defend capitalism one need not think businessmen are the finest human types. (I 
do not mean to join here the general maligning of businessmen, either.) Those 
who think the finest should acquire the most can try to convince their fellows to 
transfer resources in accordance with that principle. 



i6o 


Beyond the Minimal State ? 


posed to search for a pattern; and the separate treatment of "from 

each according to his ” treats production and distribution as 

two separate and independent issues. On an entitlement view these 
are not two separate questions. Whoever makes something, having 
bought or contracted for all other held resources used in the pro- 
cess (transferring some of his holdings for these cooperating fac- 
tors), is entitled to it. The situation is not one of something’s 
getting made, and there being an open question of who is to get 
it. Things come into the world already attached to people having 
entitlements over them. From the point of view of the historical 
entitlement conception of justice in holdings, those who start 

afresh to complete “to each according to his ” treat objects 

as if they appeared from nowhere, out of nothing. A complete 
theory of justice might cover this limit case as well; perhaps here 
is a use for the usual conceptions of distributive justice . 5 

So entrenched are maxims of the usual form that perhaps we 
should present the entitlement conception as a competitor. Ignor- 
ing acquisition and rectification, we might say: 

From each according to what he chooses to do, to each according to what 
he makes for himself (perhaps with the contracted aid of others) and 
what others choose to do for him and choose to give him of what they’ve 
been given previously (under this maxim) and haven’t yet expended or 
transferred. 

This, the discerning reader will have noticed, has its defects as a 
slogan. So as a summary and great simplification (and not as a 
maxim with any independent meaning) we have: 

From each as they choose, to each as they are chosen. 


HOW LIBERTY UPSETS PATTERNS 

It is not clear how those holding alternative conceptions of dis- 
tributive justice can reject the entitlement conception of justice in 
holdings. For suppose a distribution favored by one of these non- 
entitlement conceptions is realized. Let us suppose it is your favor- 
ite one and let us call this distribution D 1 ; perhaps everyone has an 
equal share, perhaps shares vary in accordance with some dimen- 



Distributive Justice 


161 

sion you treasure. Now suppose that Wilt Chamberlain is greatly 
in demand by basketball teams, being a great gate attraction. 
(Also suppose contracts run only for a year, with players being free 
agents.) He signs the following sort of contract with a team: In 
each home game, twenty-five cents from the price of each ticket of 
admission goes to him. (We ignore the question of whether he is 
“gouging” the owners, letting them look out for themselves.) The 
season starts, and people cheerfully attend his team’s games; they 
buy their tickets, each time dropping a separate twenty-five cents 
of their admission price into a special box with Chamberlain’s 
name on it. They are excited about seeing him play; it is worth 
the total admission price to them. Let us suppose that in one 
season one million persons attend his home games, and Wilt 
Chamberlain winds up with $250,000, a much larger sum than 
the average income and larger even than anyone else has. Is he en- 
titled to this income? Is this new distribution D 2, unjust? If so, 
why? There is no question about whether each of the people was 
entitled to the control over the resources they held in D 1 ; because 
that was the distribution (your favorite) that (for the purposes of 
argument) we assumed was acceptable. Each of these persons chose 
to give twenty-five cents of their money to Chamberlain. They 
could have spent it on going to the movies, or on candy bars, or 
on copies of Dissent magazine, or of Montly Review. But they all, at 
least one million of them, converged on giving it to Wilt Cham- 
berlain in exchange for watching him play basketball. If D 1 was a 
just distribution, and people voluntarily moved from it to D 2, 
transferring parts of their shares they were given under D 1 (what 
was it for if not to do something with?), isn’t D 2 also just? If the 
people were entitled to dispose of the resources to which they were 
entitled (under D 1), didn’t this include their being entitled to 
give it to, or exchange it with, Wilt Chamberlain? Can anyone 
else complain on grounds of justice? Each other person already has 
his legitimate share under D 1. Under D 1, there is nothing that 
anyone has that anyone else has a claim of justice against. After 
someone transfers something to Wilt Chamberlain, third parties 
still have their legitimate shares; their shares are not changed. By 
what process could such a transfer among two persons give rise to 
a legitimate claim of distributive justice on a portion of what was 



162 


Beyond the Minimal State ? 


transferred, by a third party who had no claim of justice on any 
holding of the others before the transfer?* To cut off objections ir- 
relevant here, we might imagine the exchanges occurring in a so- 
cialist society, after hours. After playing whatever basketball he 
does in his daily work, or doing whatever other daily work he 
does, Wilt Chamberlain decides to put in overtime to earn addi- 
tional money. (First his work quota is set; he works time over 
that.) Or imagine it is a skilled juggler people like to see, who 
puts on shows after hours. 

Why might someone work overtime in a society in which it is 
assumed their needs are satisfied? Perhaps because they care about 
things other than needs. I like to write in books that I read, and 
to have easy access to books for browsing at odd hours. It would 
be very pleasant and convenient to have the resources of Widener 
Library in my back yard. No society, I assume, will provide such 
resources close to each person who would like them as part of his 
regular allotment (under D 1). Thus, persons either must do with- 
out some extra things that they want, or be allowed to do some- 
thing extra to get some of these things. On what basis could the 
inequalities that would eventuate be forbidden? Notice also that 
small factories would spring up in a socialist society, unless forbid- 
den. I melt down some of my personal possessions (under Di) and 
build a machine out of the material. I offer you, and others, a phi- 
losophy lecture once a week in exchange for your cranking the 

* Might not a transfer have instrumental effects on a third party, changing 
his feasible options? (But what if the two parties to the transfer independently 
had used their holdings in this fashion?) I discuss this question below, but note 
here that this question concedes the point for distributions of ultimate intrinsic 
noninstrumental goods (pure utility experiences, so to speak) that are transfer- 
rable. It also might be objected that the transfer might make a third party more 
envious because it worsens his position relative to someone else. I find it in- 
comprehensible how this can be thought to involve a claim of justice. On envy, 
see Chapter 8. 

Here and elsewhere in this chapter, a theory which incorporates elements of 
pure procedural justice might find what I say acceptable, if kept in its proper 
place; that is, if background institutions exist to ensure the satisfaction of cer- 
tain conditions on distributive shares. But if these institutions are not them- 
selves the sum or invisible-hand result of people’s voluntary (nonaggressive) ac- 
tions, the constraints they impose require justification. At no point does our 
argument assume any background institutions more extensive than those of the 
minimal night-watchman state, a state limited to protecting persons against 
murder, assault, theft, fraud, and so forth. 



Distributive Justice 


163 


handle on my machine, whose products I exchange for yet other 
things, and so on. (The raw materials used by the machine are 
given to me by others who possess them under Di, in exchange for 
hearing lectures.) Each person might participate to gain things 
over and above their allotment under D 1. Some persons even 
might want to leave their job in socialist industry and work full 
time in this private sector. I shall say something more about these 
issues in the next chapter. Here I wish merely to note how private 
property even in means of production would occur in a socialist so- 
ciety that did not forbid people to use as they wished some of the 
resources they are given under the socialist distribution D 1. 6 The 
socialist society would have to forbid capitalist acts between con- 
senting adults. 

The general point illustrated by the Wilt Chamberlain example 
and the example of the entrepreneur in a socialist society is that no 
end-state principle or distributional patterned principle of justice 
can be continuously realized without continuous interference with 
people’s lives. Any favored pattern would be transformed into one 
unfavored by the principle, by people choosing to act in various 
ways; for example, by people exchanging goods and services with 
other people, or giving things to other people, things the trans- 
ferrers are entitled to under the favored distributional pattern. To 
maintain a pattern one must either continually interfere to stop 
people from transferring resources as they wish to, or continually 
(or periodically) interfere to take from some persons resources that 
others for some reason chose to transfer to them. (But if some time 
limit is to be set on how long people may keep resources others 
voluntarily transfer to them, why let them keep these resources for 
any period of time? Why not have immediate confiscation?) It 
might be objected that all persons voluntarily will choose to re- 
frain from actions which would upset the pattern. This presup- 
poses unrealistically (1) that all will most want to maintain the 
pattern (are those who don’t, to be “reeducated” or forced to un- 
dergo “self-criticism”?), (2) that each can gather enough informa- 
tion about his own actions and the ongoing activities of others to 
discover which of his actions will upset the pattern, and (3) that 
diverse and far-flung persons can coordinate their actions to dove- 
tail into the pattern. Compare the manner in which the mar- 
ket is neutral among persons’ desires, as it reflects and transmits 



164 Beyond the Minimal State? 

widely scattered information via prices, and coordinates persons’ 
activities. 

It puts things perhaps a bit too strongly to say that every pat- 
terned (or end-state) principle is liable to be thwarted by the vol- 
untary actions of the individual parties transferring some of their 
shares they receive under the principle. For perhaps some very 
weak patterns are not so thwarted.* Any distributional pattern 
with any egalitarian component is overturnable by the voluntary 
actions of individual persons over time; as is every patterned con- 
dition with sufficient content so as actually to have been proposed 
as presenting the central core of distributive justice. Still, given 
the possibility that some weak conditions or patterns may not be 
unstable in this way, it would be better to formulate an explicit 
description of the kind of interesting and contentful patterns 
under discussion, and to prove a theorem about their instability. 
Since the weaker the patterning, the more likely it is that the 
entitlement system itself satisfies it, a plausible conjecture is that 
any patterning either is unstable or is satisfied by the entitlement 
system. 


sen’s argument 

Our conclusions are reinforced by considering a recent general 
argument of Amartya K. Sen . 7 Suppose individual rights are in- 
terpreted as the right to choose which of two alternatives is to be 


* Is the patterned principle stable that requires merely that a distribution be 
Pareto-optimal? One person might give another a gift or bequest that the sec- 
ond could exchange with a third to their mutual benefit. Before the second 
makes this exchange, there is not Pareto-optimality. Is a stable pattern pre- 
sented by a principle choosing that among the Pareto-optimal positions that 
satisfies some further condition C? It may seem that there cannot be a coun- 
terexample, for won’t any voluntary exchange made away from a situation show 
that the first situation wasn’t Pareto-optimal? (Ignore the implausibility of this 
last claim for the case of bequests.) But principles are to be satisfied over time, 
during which new possibilities arise. A distribution that at one time satisfies 
the criterion of Pareto-optimality might not do so when some new possibilities 
arise (Wilt Chamberlain grows up and starts playing basketball); and though 
people’s activities will tend to move then to a new Pareto-optimal position, this 



Distributive Justice 165 

more highly ranked in a social ordering of the alternatives. Add 
the weak condition that if one alternative unanimously is preferred 
to another then it is ranked higher by the social ordering. If there 
are two different individuals each with individual rights, in- 
terpreted as above, over different pairs of alternatives (having no 
members in common), then for some possible preference rankings 
of the alternatives by the individuals, there is no linear social or- 
dering. For suppose that person A has the right to decide among 
(X, Y) and person B has the right to decide among ( Z, W)\ and sup- 
pose their individual preferences are as follows (and that there are 
no other individuals). Person A prefers IF toX toY to Z, and per- 
son B prefers Y to Z to W to X. By the unanimity condition, in 
the social ordering W is preferred to X (since each individual 
prefers it to X), and Y is preferred to Z (since each individual 
prefers it to Z). Also in the social ordering, X is preferred to Y, by 
person A’s right of choice among these two alternatives. Combin- 
ing these three binary rankings, we get W preferred to X preferred 
to Y preferred to Z, in the social ordering. However, by person 
B’s right of choice, Z must be preferred to W in the social order- 
ing. There is no transitive social ordering satisfying all these con- 
ditions, and the social ordering, therefore, is nonlinear. Thus far, 
Sen. 

The trouble stems from treating an individual’s right to choose 
among alternatives as the right to determine the relative ordering 
of these alternatives within a social ordering. The alternative 
which has individuals rank pairs of alternatives, and separately 
rank the individual alternatives is no better; their ranking of pairs 
feeds into some method of amalgamating preferences to yield a 
social ordering of pairs; and the choice among the alternatives in 
the highest ranked pair in the social ordering is made by the indi- 
vidual with the right to decide between this pair. This system also 
has the result that an alternative may be selected although everyone 
prefers some other alternative; for example, A selects X over V, 
where (X, Y) somehow is the highest ranked pair in the social or- 


new one need not satisfy the contentful condition C. Continual interference 
will be needed to insure the continual satisfaction of C. (The theoretical possibil- 
ity of a pattern’s being maintained by some invisible-hand process that brings it 
back to an equilibrium that fits the pattern when deviations occur should be in- 
vestigated.) 




Beyond the Minimal State? 


1 66 

dering of pairs, although everyone, including A, prefers IF to X. 
(But the choice person A was given, however, was only between X 
and Y.) 

A more appropriate view of individual rights is as follows. Indi- 
vidual rights are co-possible; each person may exercise his rights as 
he chooses. The exercise of these rights fixes some features of the 
world. Within the constraints of these fixed features, a choice may 
be made by a social choice mechanism based upon a social order- 
ing; if there are any choices left to make! Rights do not determine 
a social ordering but instead set the constraints within which a 
social choice is to be made, by excluding certain alternatives, fix- 
ing others, and so on. (If I have a right to choose to live in New 
York or in Massachusetts, and I choose Massachusetts, then alter- 
natives involving my living in New York are not appropriate ob- 
jects to be entered in a social ordering.) Even if all possible alter- 
natives are ordered first, apart from anyone’s rights, the situation 
is not changed: for then the highest ranked alternative that is not 
excluded by anyone’s exercise of his rights is instituted. Rights do not 
determine the position of an alternative or the relative position of 
two alternatives in a social ordering; they operate upon a social or- 
dering to constrain the choice it can yield. 

If entitlements to holdings are rights to dispose of them, then 
social choice must take place within the constraints of how people 
choose to exercise these rights. If any patterning is legitimate, it 
falls within the domain of social choice, and hence is constrained 
by people’s rights. How else can one cope with Sen’s result? The alter- 
native of first having a social ranking with rights exercised within 
its constraints is no alternative at all. Why not just select the top- 
ranked alternative and forget about rights? If that top-ranked al- 
ternative itself leaves some room for individual choice (and here is 
where “rights” of choice is supposed to enter in) there must be 
something to stop these choices from transforming it into another 
alternative. Thus Sen’s argument leads us again to the result that 
patterning requires continuous interference with individuals’ ac- 
tions and choices . 8 



Distributive Justice 


167 


REDISTRIBUTION AND PROPERTY RIGHTS 


Apparently, patterned principles allow people to choose to expend 
upon themselves, but not upon others, those resources they are en- 
titled to (or rather, receive) under some favored distributional pat- 
tern D 1. For if each of several persons chooses to expend some of 
his D 1 resources upon one other person, then that other person 
will receive more than his D 1 share, disturbing the favored dis- 
tributional pattern. Maintaining a distributional pattern is indi- 
vidualism with a vengeance! Patterned distributional principles do 
not give people what entitlement principles do, only better dis- 
tributed. For they do not give the right to choose what to do with 
what one has; they do not give the right to choose to pursue an 
end involving (intrinsically, or as a means) the enhancement of 
another’s position. To such views, families are disturbing; for 
within a family occur transfers that upset the favored distribu- 
tional pattern. Either families themselves become units to which 
distribution takes place, the column occupiers (on what ratio- 
nale?), or loving behavior is forbidden. We should note in passing 
the ambivalent position of radicals toward the family. Its loving 
relationships are seen as a model to be emulated and extended 
across the whole society, at the same time that it is denounced as a 
suffocating institution to be broken and condemned as a focus of 
parochial concerns that interfere with achieving radical goals. 
Need we say that it is not appropriate to enforce across the wider 
society the relationships of love and care appropriate within a fam- 
ily, relationships which are voluntarily undertaken?* Incidentally, 


* One indication of the stringency of Rawls’ difference principle, which we 
attend to in the second part of this chapter, is its inappropriateness as a govern- 
ing principle even within a family of individuals who love one another. Should 
a family devote its resources to maximizing the position of its least well off and 
least talented child, holding back the other children or using resources for their 
education and development only if they will follow a policy through their life- 
times of maximizing the position of their least fortunate sibling? Surely not. 
How then can this even be considered as the appropriate policy for enforcement 
in the wider society? (I discuss below what I think would be Rawls’ reply: 
that some principles apply at the macro level which do not apply to micro- 
situations.) 



Beyond the Minimal State? 


1 68 

love is an interesting instance of another relationship that is histor- 
ical, in that (like justice) it depends upon what actually occurred. 
An adult may come to love another because of the other’s charac- 
teristics; but it is the other person, and not the characteristics, 
that is loved . 9 The love is not transferrable to someone else with 
the same characteristics, even to one who “scores” higher for these 
characteristics. And the love endures through changes of the char- 
acteristics that gave rise to it. One loves the particular person one 
actually encountered. Why love is historical, attaching to persons 
in this way and not to characteristics, is an interesting and puz- 
zling question. 

Proponents of patterned principles of distributive justice focus 
upon criteria for determining who is to receive holdings; they con- 
sider the reasons for which someone should have something, and 
also the total picture of holdings. Whether or not it is better to 
give than to receive, proponents of patterned principles ignore giv- 
ing altogether. In considering the distribution of goods, income, 
and so forth, their theories are theories of recipient justice; they 
completely ignore any right a person might have to give some- 
thing to someone. Even in exchanges where each party is simulta- 
neously giver and recipient, patterned principles of justice focus 
only upon the recipient role and its supposed rights. Thus discus- 
sions tend to focus on whether people (should) have a right to in- 
herit, rather than on whether people (should) have a right to 
bequeath or on whether persons who have a right to hold also have 
a right to choose that others hold in their place. I lack a good ex- 
planation of why the usual theories of distributive justice are so re- 
cipient oriented; ignoring givers and transferrers and their rights is 
of a piece with ignoring producers and their entitlements. But 
why is it all ignored? 

Patterned principles of distributive justice necessitate redistrib- 
utive activities. The likelihood is small that any actual freely-ar- 
rived-at set of holdings fits a given pattern; and the likelihood is 
nil that it will continue to fit the pattern as people exchange and 
give. From the point of view of an entitlement theory, redistri- 
bution is a serious matter indeed, involving, as it does, the viola- 
tion of people’s rights. (An exception is those takings that fall 
under the principle of the rectification of injustices.) From other 
points of view, also, it. is serious. 



Distributive Justice 


169 


Taxation of earnings from labor is on a par with forced labor.* 
Some persons find this claim obviously true: taking the earnings of 
n hours labor is like taking n hours from the person; it is like forc- 
ing the person to work n hours for another’s purpose. Others find 
the claim absurd. But even these, if they object to forced labor, 
would oppose forcing unemployed hippies to work for the benefit 
of the needy. + And they would also object to forcing each person 
to work five extra hours each week for the benefit of the needy. 
But a system that takes five hours’ wages in taxes does not seem to 
them like one that forces someone to work five hours, since it 
offers the person forced a wider range of choice in activities than 
does taxation in kind with the particular labor specified. (But we 
can imagine a gradation of systems of forced labor, from one that 
specifies a particular activity, to one that gives a choice among two 
activities, to ... ; and so on up.) Furthermore, people envisage 
a system with something like a proportional tax on everything 
above the amount necessary for basic needs. Some think this does 
not force someone to work extra hours, since there is no fixed 
number of extra hours he is forced to work, and since he can avoid 
the tax entirely by earning only enough to cover his basic needs. 
This is a very uncharacteristic view of forcing for those who also 
think people are forced to do something whenever the alternatives 
they face are considerably worse. However, neither view is correct. 
The fact that others intentionally intervene, in violation of a side 
constraint against aggression, to threaten force to limit the alter- 
natives, in this case to paying taxes or (presumably the worse alter- 
native) bare subsistence, makes the taxation system one of forced 
labor and distinguishes it from other cases of limited choices 
which are not forcings . 10 


* I am unsure as to whether the arguments I present below show that such 
taxation merely is forced labor; so that “is on a par with” means “is one kind 
of.” Or alternatively, whether the arguments emphasize the great similarities 
between such taxation and forced labor, to show it is plausible and illuminating 
to view such taxation in the light of forced labor. This latter approach would 
remind one of how John Wisdom conceives of the claims of metaphysicians. 

t Nothing hangs on the fact that here and elsewhere I speak loosely of needs, 
since I go on, each time, to reject the criterion of justice which includes it. If, 
however, something did depend upon the notion, one would want to examine it 
more carefully. For a skeptical view, see Kenneth Minogue, The Liberal Mind, 
(New York: Random House, 1963), pp. 103— 1 12. 



Beyond the Minimal State? 


170 

The man who chooses to work longer to gain an income more 
than sufficient for his basic needs prefers some extra goods or ser- 
vices to the leisure and activities he could perform during the pos- 
sible nonworking hours; whereas the man who chooses not to work 
the extra time prefers the leisure activities to the extra goods or 
services he could acquire by working more. Given this, if it would 
be illegitimate for a tax system to seize some of a man’s leisure 
(forced labor) for the purpose of serving the needy, how can it be 
legitimate for a tax system to seize some of a man’s goods for that 
purpose? Why should we treat the man whose happiness requires 
certain material goods or services differently from the man whose 
preferences and desires make such goods unnecessary for his happi- 
ness? Why should the man who prefers seeing a movie (and who 
has to earn money for a ticket) be open to the required call to aid 
the needy, while the person who prefers looking at a sunset (and 
hence need earn no extra money) is not? Indeed, isn’t it surprising 
that redistributionists choose to ignore the man whose pleasures 
are so easily attainable without extra labor, while adding yet an- 
other burden to the poor unfortunate who must work for his 
pleasures? If anything, one would have expected the reverse. Why 
is the person with the nonmaterial or nonconsumption desire al- 
lowed to proceed unimpeded to his most favored feasible alterna- 
tive, whereas the man whose pleasures or desires involve material 
things and who must work for extra money (thereby serving whom- 
ever considers his activities valuable enough to pay him) is con- 
strained in what he can realize? Perhaps there is no difference in 
principle. And perhaps some think the answer concerns merely ad- 
ministrative convenience. (These questions and issues will not dis- 
turb those who think that forced labor to serve the needy or to re- 
alize some favored end-state pattern is acceptable.) In a fuller 
discussion we would have (and want) to extend our argument to 
include interest, entrepreneurial profits, and so on. Those who 
doubt that this extension can be carried through, and who draw 
the line here at taxation of income from labor, will have to state 
rather complicated patterned historical principles of distributive 
justice, since end-state principles would not distinguish sources of 
income in any way. It is enough for now to get away from end- 
state principles and to make clear how various patterned principles 
are dependent upon particular views about the sources or the ille- 



Distributive Justice 


'le- 
gitimacy or the lesser legitimacy of profits, interest, and so on; 
which particular views may well be mistaken. 

What sort of right over others does a legally institutionalized 
end-state pattern give one? The central core of the notion of a 
property right in X, relative to which other parts of the notion are 
to be explained, is the right to determine what shall be done with 
X; the right to choose which of the constrained set of options con- 
cerning X shall be realized or attempted. 11 The constraints are set 
by other principles or laws operating in the society; in our theory, 
by the Lockean rights people possess (under the minimal state). 
My property rights in my knife allow me to leave it where I will, 
but not in your chest. I may choose which of the acceptable op- 
tions involving the knife is to be realized. This notion of property 
helps us to understand why earlier theorists spoke of people as hav- 
ing property in themselves and their labor. They viewed each per- 
son as having a right to decide what would become of himself and 
what he would do, and as having a right to reap the benefits of 
what he did. 

This right of selecting the alternative to be realized from the 
constrained set of alternatives may be held by an individual or by a 
group with some procedure for reaching a joint decision; or the 
right may be passed back and forth, so that one year I decide 
what’s to become of X, and the next year you do (with the alterna- 
tive of destruction, perhaps, being excluded). Or, during the same 
time period, some types of decisions about X may be made by me, 
and others by you. And so on. We lack an adequate, fruitful, ana- 
lytical apparatus for classifying the types of constraints on the set of 
options among which choices are to be made, and the types of ways 
decision powers can be held, divided, and amalgamated. A theory 
of property would, among other things, contain such a classifica- 
tion of constraints and decision modes, and from a small number 
of principles would follow a host of interesting statements about 
the consequences and effects of certain combinations of constraints 
and modes of decision. 

When end-result principles of distributive justice are built into 
the legal structure of a society, they (as do most patterned princi- 
ples) give each citizen an enforceable claim to some portion of the 
total social product; that is, to some portion of the sum total of 
the individually and jointly made products. This total product is 



172 


Beyond the Minimal State? 


produced by individuals laboring, using means of production 
others have saved to bring into existence, by people organizing 
production or creating means to produce new things or things in a 
new way. It is on this batch of individual activities that patterned 
distributional principles give each individual an enforceable claim. 
Each person has a claim to the activities and the products of other 
persons, independently of whether the other persons enter into 
particular relationships that give rise to these claims, and indepen- 
dently of whether they voluntarily take these claims upon them- 
selves, in charity or in exchange for something. 

Whether it is done through taxation on wages or on wages over 
a certain amount, or through seizure of profits, or through there 
being a big social pot so that it’s not clear what’s coming from 
where and what’s going where, patterned principles of distributive 
justice involve appropriating the actions of other persons. Seizing 
the results of someone’s labor is equivalent to seizing hours from 
him and directing him to carry on various activities. If people 
force you to do certain work, or unrewarded work, for a certain 
period of time, they decide what you are to do and what purposes 
your work is to serve apart from your decisions. This process 
whereby they take this decision from you makes them a part-owner 
of you; it gives them a property right in you. Just as having such 
partial control and power of decision, by right, over an animal or 
inanimate object would be to have a property right in it. 

End-state and most patterned principles of distributive justice 
institute (partial) ownership by others of people and their actions 
and labor. These principles involve a shift from the classical lib- 
erals’ notion of self-ownership to a notion of (partial) property 
rights in other people. 

Considerations such as these confront end-state and other pat- 
terned conceptions of justice with the question of whether the ac- 
tions necessary to achieve the selected pattern don’t themselves vi- 
olate moral side constraints. Any view holding that there are 
moral side constraints on actions, that not all moral considerations 
can be built into end states that are to be achieved (see Chapter 3, 
pp. 28—30), must face the possibility that some of its goals are not 
achievable by any morally permissible available means. An en- 
titlement theorist will face such conflicts in a society that deviates 
from the principles of justice for the generation of holdings, if and 



Distributive Justice 


173 


only if the only actions available to realize the principles them- 
selves violate some moral constraints. Since deviation from the 
first two principles of justice (in acquisition and transfer) will in- 
volve other persons’ direct and aggressive intervention to violate 
rights, and since moral constraints will not exclude defensive or 
retributive action in such cases, the entitlement theorist’s problem 
rarely will be pressing. And whatever difficulties he has in apply- 
ing the principle of rectification to persons who did not themselves 
violate the first two principles are difficulties in balancing the 
conflicting considerations so as correctly to formulate the complex 
principle of rectification itself; he will not violate moral side con- 
straints by applying the principle. Proponents of patterned con- 
ceptions of justice, however, often will face head-on clashes (and 
poignant ones if they cherish each party to the clash) between 
moral side constraints on how individuals may be treated and their 
patterned conception of justice that presents an end state or other 
pattern that must be realized. 

May a person emigrate from a nation that has institutionalized 
some end-state or patterned distributional principle? For some 
principles (for example, Hayek’s) emigration presents no theoreti- 
cal problem. But for others it is a tricky matter. Consider a nation 
having a compulsory scheme of minimal social provision to aid the 
neediest (or one organized so as to maximize the position of the 
worst-off group); no one may opt out of participating in it. (None 
may say, “Don’t compel me to contribute to others and don’t pro- 
vide for me via this compulsory mechanism if I am in need.”) Ev- 
eryone above a certain level is forced to contribute to aid the 
needy. But if emigration from the country were allowed, anyone 
could choose to move to another country that did not have compul- 
sory social provision but otherwise was (as much as possible) iden- 
tical. In such a case, the person’s only motive for leaving would be 
to avoid participating in the compulsory scheme of social provi- 
sion. And if he does leave, the needy in his initial country will re- 
ceive no (compelled) help from him. What rationale yields the 
result that the person be permitted to emigrate, yet forbidden to 
stay and opt out of the compulsory scheme of social provision? If 
providing for the needy is of overriding importance, this does 
militate against allowing internal opting out; but it also speaks 
against allowing external emigration. (Would it also support, to 



174 


Beyond the Minimal State? 


some extent, the kidnapping of persons living in a place without 
compulsory social provision, who could be forced to make a con- 
tribution to the needy in your community?) Perhaps the crucial 
component of the position that allows emigration solely to avoid 
certain arrangements, while not allowing anyone internally to opt 
out of them, is a concern for fraternal feelings within the country. 
“We don’t want anyone here who doesn’t contribute, who doesn’t 
care enough about the others to contribute.” That concern, in this 
case, would have to be tied to the view that forced aiding tends to 
produce fraternal feelings between the aided and the aider (or 
perhaps merely to the view that the knowledge that someone or 
other voluntarily is not aiding produces unfraternal feelings). 


LOCKE’S THEORY OF ACQUISITION 

Before we turn to consider other theories of justice in detail, we 
must introduce an additional bit of complexity into the structure 
of the entitlement theory. This is best approached by considering 
Locke’s attempt to specify a principle of justice in acquisition. 
Locke views property rights in an unowned object as originating 
through someone’s mixing his labor with it. This gives rise to 
many questions. What are the boundaries of what labor is mixed 
with? If a private astronaut clears a place on Mars, has he mixed 
his labor with (so that he comes to own) the whole planet, the 
whole uninhabited universe, or just a particular plot? Which plot 
does an act bring under ownership? The minimal (possibly discon- 
nected) area such that an act decreases entropy in that area, and 
not elsewhere? Can virgin land (for the purposes of ecological in- 
vestigation by high-flying airplane) come under ownership by a 
Lockean process? Building a fence around a territory presumably 
would make one the owner of only the fence (and the land imme- 
diately underneath it). 

Why does mixing one’s labor with something make one the 
owner of it? Perhaps because one owns one’s labor, and so one 
comes to own a previously unowned thing that becomes permeated 
with what one owns. Ownership seeps over into the rest. But why 
isn’t mixing what I own with what I don’t own a way of losing 



Distributive Justice 


175 


what I own rather than a way of gaining what I don’t? If I own a 
can of tomato juice and spill it in the sea so that its molecules 
(made radioactive, so I can check this) mingle evenly throughout 
the sea, do I thereby come to own the sea, or have I foolishly dissi- 
pated my tomato juice? Perhaps the idea, instead, is that laboring 
on something improves it and makes it more valuable; and anyone 
is entitled to own a thing whose value he has created. (Reinforcing 
this, perhaps, is the view that laboring is unpleasant. If some peo- 
ple made things effortlessly, as the cartoon characters in The Yellow 
Submarine trail flowers in their wake, would they have lesser claim 
to their own products whose making didn’t cost them anything?) 
Ignore the fact that laboring on something may make it less valu- 
able (spraying pink enamel paint on a piece of driftwood that you 
have found). Why should one’s entitlement extend to the whole 
object rather than just to the added value one’s labor has produced? 
(Such reference to value might also serve to delimit the extent of 
ownership; for example, substitute “increases the value of” for 
“decreases entropy in” in the above entropy criterion.) No work- 
able or coherent value-added property scheme has yet been de- 
vised, and any such scheme presumably would fall to objections 
(similar to those) that fell the theory of Henry George. 

It will be implausible to view improving an object as giving full 
ownership to it, if the stock of unowned objects that might be 
improved is limited. For an object’s coming under one person’s 
ownership changes the situation of all others. Whereas previously 
they were at liberty (in Hohfeld’s sense) to use the object, they 
now no longer are. This change in the siuation of others (by 
removing their liberty to act on a previously unowned object) need 
not worsen their situation. If I appropriate a grain of sand from 
Coney Island, no one else may now do as they will with that grain 
of sand. But there are plenty of other grains of sand left for them 
to do the same with. Or if not grains of sand, then other things. 
Alternatively, the things I do with the grain of sand I appropriate 
might improve the position of others, counterbalancing their loss 
of the liberty to use that grain. The crucial point is whether ap- 
propriation of an unowned object worsens the situation of others. 

Locke’s proviso that there be “enough and as good left in com- 
mon for others” (sect. 27) is meant to ensure that the situation of 
others is not worsened. (If this proviso is met is there any motiva- 



176 


Beyond the Minimal State? 


tion for his further condition of nonwaste?) It is often said that 
this proviso once held but now no longer does. But there appears 
to be an argument for the conclusion that if the proviso no longer 
holds, then it cannot ever have held so as to yield permanent and 
inheritable property rights. Consider the first person Z for whom 
there is not enough and as good left to appropriate. The last per- 
son Y to appropriate left Z without his previous liberty to act on 
an object, and so worsened Z’s situation. So T’s appropriation is 
not allowed under Locke’s proviso. Therefore the next to last per- 
son X to appropriate left Y in a worse position, for X’s act ended 
permissible appropriation. Therefore X’s appropriation wasn’t per- 
missible. But then the appropriator two from last, W , ended per- 
missible appropriation and so, since it worsened X’s position, W’s 
appropriation wasn’t permissible. And so on back to the first per- 
son A to appropriate a permanent property right. 

This argument, however, proceeds too quickly. Someone may 
be made worse off by another’s appropriation in two ways: first, by 
losing the opportunity to improve his situation by a particular ap- 
propriation or any one; and second, by no longer being able to use 
freely (without appropriation) what he previously could. A stringent 
requirement that another not be made worse off by an appropria- 
tion would exclude the first way if nothing else counterbalances 
the diminution in opportunity, as well as the second. A weaker 
requirement would exclude the second way, though not the first. 
With the weaker requirement, we cannot zip back so quickly from 
Z to A, as in the above argument; for though person Z can no 
longer appropriate, there may remain some for him to use as before. 
In this case Y’s appropriation would not violate the weaker Lock- 
ean condition. (With less remaining that people are at liberty to 
use, users might face more inconvenience, crowding, and so on; in 
that way the situation of others might be worsened, unless appro- 
priation stopped far short of such a point.) It is arguable that no 
one legitimately can complain if the weaker provision is satisfied. 
However, since this is less clear than in the case of the more strin- 
gent proviso, Locke may have intended this stringent proviso by 
“enough and as good” remaining, and perhaps he meant the non- 
waste condition to delay the end point from which the argument 
zips back. 



Distributive Justice 


177 


Is the situation of persons who are unable to appropriate (there 
being no more accessible and useful unowned objects) worsened by 
a system allowing appropriation and permanent property? Here 
enter the various familiar social considerations favoring private 
property: it increases the social product by putting means of pro- 
duction in the hands of those who can use them most efficiently 
(profitably); experimentation is encouraged, because with separate 
persons controlling resources, there is no one person or small 
group whom someone with a new idea must convince to try it out; 
private property enables people to decide on the pattern and types 
of risks they wish to bear, leading to specialized types of risk bear- 
ing; private property protects future persons by leading some to 
hold back resources from current consumption for future markets; 
it provides alternate sources of employment for unpopular persons 
who don’t have to convince any one person or small group to hire 
them, and so on. These considerations enter a Lockean theory to 
support the claim that appropriation of private property satisfies 
the intent behind the “enough and as good left over” proviso, not 
as a utilitarian justification of property. They enter to rebut the 
claim that because the proviso is violated no natural right to 
private property can arise by a Lockean process. The difficulty in 
working such an argument to show that the proviso is satisfied is 
in fixing the appropriate base line for comparison. Lockean appro- 
priation makes people no worse off than they would be bow? 12 
This question of fixing the baseline needs more detailed investiga- 
tion than we are able to give it here. It would be desirable to have 
an estimate of the general economic importance of original appro- 
priation in order to see how much leeway there is for differing 
theories of appropriation and of the location of the baseline. 
Perhaps this importance can be measured by the percentage of all 
income that is based upon untransformed raw materials and given 
resources (rather than upon human actions), mainly rental income 
representing the unimproved value of land, and the price of raw 
material in situ, and by the percentage of current wealth which 
represents such income in the past.* 


* I have not seen a precise estimate. David Friedman, The Machinery of Free- 
dom (N.Y.: Harper & Row, 1973), pp. xiv, xv, discusses this issue and sug- 



178 


Beyond the Minimal State ? 


We should note that it is not only persons favoring private prop- 
erty who need a theory of how property rights legitimately origi- 
nate. Those believing in collective property, for example those be- 
lieving that a group of persons living in an area jointly own the 
territory, or its mineral resources, also must provide a theory of 
how such property rights arise; they must show why the persons 
living there have rights to determine what is done with the land 
and resources there that persons living elsewhere don’t have (with 
regard to the same land and resources). 


THE PROVISO 

Whether or not Locke’s particular theory of appropriation can be 
spelled out so as to handle various difficulties, I assume that any 
adequate theory of justice in acquisition will contain a proviso 
similar to the weaker of the ones we have attributed to Locke. A 
process normally giving rise to a permanent bequeathable property 
right in a previously unowned thing will not do so if the position 
of others no longer at liberty to use the thing is thereby worsened. 
It is important to specify this particular mode of worsening the sit- 
uation of others, for the proviso does not encompass other modes. 
It does not include the worsening due to more limited opportu- 
nities to appropriate (the first way above, corresponding to the 
more stringent condition), and it does not include how I “worsen” 
a seller’s position if I appropriate materials to make some of what 
he is selling, and then enter into competition with him. Someone 
whose appropriation otherwise would violate the proviso still may 
appropriate provided he compensates the others so that their situa- 
tion is not thereby worsened; unless he does compensate these 
others, his appropriation will violate the proviso of the principle of 
justice in acquisition and will be an illegitimate one.* A theory of 


gests 5 percent of U.S. national income as an upper limit for the first two fac- 
tors mentioned. However he does not attempt to estimate the percentage of 
current wealth which is based upon such income in the past. (The vague notion of 
"based upon” merely indicates a topic needing investigation.) 

* Fourier held that since the process of civilization had deprived the 
members of society of certain liberties (to gather, pasture, engage in the chase). 



Distributive Justice 


179 


appropriation incorporating this Lockean proviso will handle cor- 
rectly the cases (objections to the theory lacking the proviso) where 
someone appropriates the total supply of something necessary for 
life.* 

A theory which includes this proviso in its principle of justice 
in acquisition must also contain a more complex principle of jus- 
tice in transfer. Some reflection of the proviso about appropriation 
constrains later actions. If my appropriating all of a certain sub- 
stance violates the Lockean proviso, then so does my appropriating 
some and purchasing all the rest from others who obtained it 
without otherwise violating the Lockean proviso. If the proviso 
excludes someone’s appropriating all the drinkable water in the 
world, it also excludes his purchasing it all. (More weakly, and 
messily, it may exclude his charging certain prices for some of his 
supply.) This proviso (almost?) never will come into effect; the 
more someone acquires of a scarce substance which others want, 
the higher the price of the rest will go, and the more difficult it 
will become for him to acquire it all. But still, we can imagine, at 
least, that something like this occurs: someone makes simulta- 


a socially guaranteed minimum provision for persons was justified as compensa- 
tion for the loss (Alexander Gray, The Socialist Tradition (New York: Harper & 
Row, 1968), p. 188). But this puts the point too strongly. This compensation 
would be due those persons, if any, for whom the process of civilization was a 
net loss, for whom the benefits of civilization did not counterbalance being 
deprived of these particular liberties. 

* For example, Rashdall’s case of someone who comes upon the only water in 
the desert several miles ahead of others who also will come to it and appropri- 
ates it all. Hastings Rashdall, “The Philosophical Theory of Property,” in Prop- 
erty, its Duties and Rights (London: MacMillan, 1915). 

We should note Ayn Rand’s theory of property rights ("Man’s Rights” in 
The Virtue of Selfishness (New York: New American Library, 1964), p. 94), 
wherein these follow from the tight to life, since people need physical things to 
live. But a right to life is not a right to whatever one needs to live; other people 
may have rights over these other things (see Chapter 3 of this book). At most, a 
right to life would be a right to have or strive for whatever one needs to live, 
provided that having it does not violate anyone else’s rights. With regard to 
material things, the question is whether having it does violate any right of 
others. (Would appropriation of all unowned things do so? Would appropri- 
ating the water hole in Rashdall’s example?) Since special considerations (such as 
the Lockean proviso) may enter with regard to material property, one first needs 
a theory of property rights before one can apply any supposed right to life (as 
amended above). Therefore the right to life cannot provide the foundation for a 
theory of property rights. 




180 Beyond the Minimal State? 

neous secret bids to the separate owners of a substance, each of 
whom sells assuming he can easily purchase more from the other 
owners; or some natural catastrophe destroys all of the supply of 
something except that in one person’s possession. The total supply 
could not be permissibly appropriated by one person at the 
beginning. His later acquisition of it all does not show that the 
original appropriation violated the proviso (even by a reverse argu- 
ment similar to the one above that tried to zip back from Z to A). 
Rather, it is the combination of the original appropriation plus all 
the later transfers and actions that violates the Lockean proviso. 

Each owner’s title to his holding includes the historical shadow 
of the Lockean proviso on appropriation. This excludes his trans- 
ferring it into an agglomeration that does violate the Lockean 
proviso and excludes his using it in a way, in coordination with 
others or independently of them, so as to violate the proviso by 
making the situation of others worse than their baseline situation. 
Once it is known that someone’s ownership runs afoul of the 
Lockean proviso, there are stringent limits on what he may do 
with (what it is difficult any longer unreservedly to call) “his prop- 
erty.” Thus a person may not appropriate the only water hole in a 
desert and charge what he will. Nor may he charge what he will if 
he possesses one, and unfortunately it happens that all the water 
holes in the desert dry up, except for his. This unfortunate cir- 
cumstance, admittedly no fault of his, brings into operation the 
Lockean proviso and limits his property rights.* Similarly, an 
owner’s property right in the only island in an area does not allow 
him to order a castaway from a shipwreck off his island as a tres- 
passer, for this would violate the Lockean proviso. 

Notice that the theory does not say that owners do have these 
rights, but that the rights are overridden to avoid some catastro- 
phe. (Overridden rights do not disappear; they leave a trace of a 
sort absent in the cases under discussion.) 13 There is no such ex- 
ternal (and ad hoc?) overriding. Considerations internal to the 
theory of property itself, to its theory of acquisition and appropria- 

* The situation would be different if his water hole didn’t dry up, due to 
special precautions he took to prevent this. Compare our discussion of the case 
in the text with Hayek, The Constitution of Liberty , p. 136; and also with Ronald 
Hamowy, "Hayek’s Concept of Freedom; A Critique," New Individualist Review, 
April 1961, pp. 28—31. 



Distributive Justice 181 

tion, provide the means for handling such cases. The results, how- 
ever, may be coextensive with some condition about catastrophe, 
since the baseline for comparison is so low as compared to the 
productiveness of a society with private appropriation that the 
question of the Lockean proviso being violated arises only in 
the case of catastrophe (or a desert-island situation). 

The fact that someone owns the total supply of something nec- 
essary for others to stay alive does not entail that his (or anyone’s) 
appropriation of anything left some people (immediately or later) 
in a situation worse than the baseline one. A medical researcher 
who synthesizes a new substance that effectively treats a certain 
disease and who refuses to sell except on his terms does not worsen 
the situation of others by depriving them of whatever he has ap- 
propriated. The others easily can possess the same materials he ap- 
propriated; the researcher’s appropriation or purchase of chemicals 
didn’t make those chemicals scarce in a way so as to violate the 
Lockean proviso. Nor would someone else’s purchasing the total 
supply of the synthesized substance from the medical researcher. 
The fact that the medical researcher uses easily available chemicals 
to synthesize the drug no more violates the Lockean proviso than 
does the fact that the only surgeon able to perform a particular 
operation eats easily obtainable food in order to stay alive and to 
have the energy to work. This shows that the Lockean proviso is 
not an “end-state principle”; it focuses on a particular way that ap- 
propriative actions affect others, and not on the structure of the 
situation that results . 14 

Intermediate between someone who takes all of the public 
supply and someone who makes the total supply out of easily ob- 
tainable substances is someone who appropriates the total supply of 
something in a way that does not deprive the others of it. For ex- 
ample, someone finds a new substance in an out-of-the-way place. 
He discovers that it effectively treats a certain disease and appro- 
priates the total supply. He does not worsen the situation of 
others; if he did not stumble upon the substance no one else would 
have, and the others would remain without it. However, as time 
passes, the likelihood increases that others would have come across 
the substance; upon this fact might be based a limit to his prop- 
erty right in the substance so that others are not below their base- 
line position; for example, its bequest might be limited. The 



182 


Beyond the Minimal State? 

theme of someone worsening another’s situation by depriving him 
of something he otherwise would possess may also illuminate the 
example of patents. An inventor’s patent does not deprive others of 
an object which would not exist if not for the inventor. Yet pat- 
ents would have this effect on others who independently invent the 
object. Therefore, these independent inventors, upon whom the 
burden of proving independent discovery may rest, should not be 
excluded from utilizing their own invention as they wish (includ- 
ing selling it to others). Furthermore, a known inventor drastically 
lessens the chances of actual independent invention. For persons 
who know of an invention usually will not try to reinvent it, and 
the notion of independent discovery here would be murky at best. 
Yet we may assume that in the absence of the original invention, 
sometime later someone else would have come up with it. This 
suggests placing a time limit on patents, as a rough rule of thumb 
to approximate how long it would have taken, in the absence of 
knowledge of the invention, for independent discovery. 

I believe that the free operation of a market system will not ac- 
tually run afoul of the Lockean proviso. (Recall that crucial to our 
story in Part I of how a protective agency becomes dominant and a 
de facto monopoly is the fact that it wields force in situations of 
conflict, and is not merely in competition, with other agencies. A 
similar tale cannot be told about other businesses.) If this is cor- 
rect, the proviso will not play a very important role in the activi- 
ties of protective agencies and will not provide a significant oppor- 
tunity for future state action. Indeed, were it not for the effects of 
previous illegitimate state action, people would not think the possi- 
bility of the proviso’s being violated as of more interest than any 
other logical possibility. (Here I make an empirical historical 
claim; as does someone who disagrees with this.) This completes 
our indication of the complication in the entitlement theory in- 
troduced by the Lockean proviso. 



Distributive Justice 


183 


SECTION II 

RAWLS’ THEORY 

We can bring our discussion of distributive justice into sharper 
focus by considering in some detail John Rawls’ recent contribu- 
tion to the subject. A Theory of Justice 15 is a powerful, deep, 
subtle, wide-ranging, systematic work in political and moral phi- 
losophy which has not seen its like since the writings of John 
Stuart Mill, if then. It is a fountain of illuminating ideas, in- 
tegrated together into a lovely whole. Political philosophers now 
must either work within Rawls’ theory or explain why not. The 
considerations and distinctions we have developed are illuminated 
by, and help illuminate, Rawls’ masterful presentation of an alter- 
native conception. Even those who remain unconvinced after wres- 
tling with Rawls’ systematic vision will learn much from closely 
studying it. I do not speak only of the Millian sharpening of one’s 
views in combating (what one takes to be) error. It is impossible 
to read Rawls’ book without incorporating much, perhaps trans- 
muted, into one’s own deepened view. And it is impossible to 
finish his book without a new and inspiring vision of what a moral 
theory may attempt to do and unite; of how beautiful a whole 
theory can be. I permit myself to concentrate here on disagree- 
ments with Rawls only because I am confident that my readers 
will have discovered for themselves its many virtues. 


SOCIAL COOPERATION 


I shall begin by considering the role of the principles of justice. Let us 
assume, to fix ideas, that a society is a more or less self-sufficient associa- 
tion of persons who in their relations to one another recognize certain 
rules of conduct as binding and who for the most part act in accordance 
with them. Suppose further that these rules specify a system of coopera- 
tion designed to advance the good of those taking part in it. Then, al- 
though a society is a cooperative venture for mutual advantage, it is 



184 Beyond the Minimal State? 

typically marked by a conflict as well as by an identity of interests. 
There is an identity of interests since social cooperation makes possible a 
better life for all than any would have if each were to live solely by his 
own efforts. There is a conflict of interests since persons are not indiffer- 
ent as to how the greater benefits produced by their collaboration are dis- 
tributed, for in order to pursue their ends they each prefer a larger to a 
lesser share. A set of principles is required for choosing among the 
various social arrangements which determine this division of advantages 
and for underwriting an agreement on the proper distributive shares. 
These principles are the principles of social justice: they provide a way of 
assigning rights and duties in the basic institutions of society and they 
define the appropriate distribution of the benefits and burdens of social 
cooperation. 16 

Let us imagine n individuals who do not cooperate together and 
who each live solely by their own efforts. Each person i receives a 
payoff, return, income, and so forth, S,\ the sum total of what each 
individual gets acting separately is 

n 

s = £ St. 

i = 1 

By cooperating together they can obtain a larger sum total T. The 
problem of distributive social justice, according to Rawls, is how 
these benefits of cooperation are to be distributed or allocated. 
This problem might be conceived of in two ways: how is the total 
T to be allocated? Or, how is the incremental amount due to social 
cooperation, that is the benefits of social cooperation T — S, to be 
allocated? The latter formulation assumes that each individual i re- 
ceives from the subtotal S of T, his share S,. The two statements of 
the problem differ. When combined with the noncooperative dis- 
tribution of S (each i getting a “fair-looking” distribution of 
T — S under the second version may not yield a “fair-looking” dis- 
tribution of T (the first version). Alternatively, a fair-looking dis- 
tribution of T may give a particular individual i less than his share 
Sj. (The constraint T,^S, on the answer to the first formulation of 
the problem, where T, is the share in T of the ? th individual, would 
exclude this possibility.) Rawls, without distinguishing these two 
formulations of the problem, writes as though his concern is the 
first one, that is, how the total sum T is to be distributed. One 
might claim, to support a focus on the first issue, that due to the 
enormous benefits of social cooperation, the noncooperative shares 
Si are so small in comparison to any cooperative ones T, that they 



Distributive Justice 


185 

may be ignored in setting up the problem of social justice. 
Though we should note that this certainly is not how people enter- 
ing into cooperation with one another would agree to conceive of 
the problem of dividing up cooperation’s benefits. 

Why does social cooperation create the problem of distributive 
justice? Would there be no problem of justice and no need for a 
theory of justice, if there was no social cooperation at all, if each 
person got his share solely by his own efforts? If we suppose, as 
Rawls seems to, that this situation does not raise questions of dis- 
tributive justice, then in virtue of what facts about social coopera- 
tion do these questions of justice emerge? What is it about social 
cooperation that gives rise to issues of justice? It cannot be said 
that there will be conflicting claims only where there is social co- 
operation; that individuals who produce independently and (ini- 
tially) fend for themselves will not make claims of justice on each 
other. If there were ten Robinson Crusoes, each working alone for 
two years on separate islands, who discovered each other and the 
facts of their different allotments by radio communication via 
transmitters left twenty years earlier, could they not make claims 
on each other, supposing it were possible to transfer goods from 
one island to the next? 17 Wouldn’t the one with least make a 
claim on ground of need, or on the ground that his island was nat- 
urally poorest, or on the ground that he was naturally least capable 
of fending for himself? Mightn’t he say that justice demanded he 
be given some more by the others, claiming it unfair that he 
should receive so much less and perhaps be destitute, perhaps 
starving? He might go on to say that the different individual non- 
cooperative shares stem from differential natural endowments, 
which are not deserved, and that the task of justice is to rectify 
these arbitrary facts and inequities. Rather than its being the case 
that no one will make such claims in the situation lacking social 
cooperation, perhaps the point is that such claims clearly would be 
without merit. Why would they clearly be without merit? In the 
social noncooperation situation, it might be said, each individual 
deserves what he gets unaided by his own efforts; or rather, no one 
else can make a claim of justice against this holding. It is pellucidly 
clear in this situation who is entitled to what, so no theory of jus- 
tice is needed. On this view social cooperation introduces a mud- 
dying of the waters that makes it unclear or indeterminate who is 



Beyond the Minimal State? 


1 86 

entitled to what. Rather than saying that no theory of justice 
applies to this noncooperative case, (wouldn’t it be unjust if some- 
one stole another’s products in the noncooperative situation?), I 
would say that it is a clear case of application of the correct theory 
of justice: the entitlement theory. 

How does social cooperation change things so that the same 
entitlement principles that apply to the noncooperative cases be- 
come inapplicable or inappropriate to cooperative ones? It might 
be said that one cannot disentangle the contributions of distinct 
individuals who cooperate; everything is everyone’s joint product. 
On this joint product, or on any portion of it, each person plausi- 
bly will make claims of equal strength; all have an equally good 
claim, or at any rate no person has a distinctly better claim than 
any other. Somehow (this line of thought continues), it must be 
decided how this total product of joint social cooperation (to 
which individual entitlements do not apply differentially) is to be 
divided up: this is the problem of distributive justice. 

Don’t individual entitlements apply to parts of the cooperatively 
produced product? First, suppose that social cooperation is based 
upon division of labor, specialization, comparative advantage, and 
exchange; each person works singly to transform some input he re- 
ceives, contracting with others who further transform or transport 
his product until it reaches its ultimate consumer. People cooper- 
ate in making things but they work separately; each person is a 
miniature firm . 18 The products of each person are easily iden- 
tifiable, and exchanges are made in open markets with prices set 
competitively, given informational constraints, and so forth. In 
such a system of social cooperation, what is the task of a theory of 
justice? It might be said that whatever holdings result will depend 
upon the exchange ratios or prices at which exchanges are made, 
and therefore that the task of a theory of justice is to set criteria for 
“fair prices.” This is hardly the place to trace the serpentine wind- 
ings of theories of a just price. It is difficult to see why these issues 
should even arise here. People are choosing to make exchanges 
with other people and to transfer entitlements, with no restrictions 
on their freedom to trade with any other party at any mutually ac- 
ceptable ratio . 19 Why does such sequential social cooperation, 
linked together by people’s voluntary exchanges, raise any special 
problems about how things are to be distributed? Why isn’t the 



Distributive Justice 


187 


appropriate (a not inappropriate) set of holdings just the one which 
actually occurs via this process of mutually-agreed-to exchanges 
whereby people choose to give to others what they are entitled to 
give or hold? 

Let us now drop our assumption that people work indepen- 
dently, cooperating only in sequence via voluntary exchanges, and 
instead consider people who work together jointly to produce 
something. Is it now impossible to disentangle people’s respective 
contributions? The question here is not whether marginal produc- 
tivity theory is an appropriate theory of fair or just shares, but 
whether there is some coherent notion of identifiable marginal 
product. It seems unlikely that Rawls’ theory rests on the strong 
claim that there is no such reasonably serviceable notion. Anyway, 
once again we have a situation of a large number of bilateral 
exchanges: owners of resources reaching separate agreements with 
entrepreneurs about the use of their resources, entrepreneurs reach- 
ing agreements with individual workers, or groups of workers first 
reaching some joint agreement and then presenting a package to 
an entrepreneur, and so forth. People transfer their holdings or 
labor in free markets, with the exchange ratios (prices) determined 
in the usual manner. If marginal productivity theory is reasonably 
adequate, people will be receiving, in these voluntary transfers of 
holdings, roughly their marginal products.* 

* Receiving this, we should note, is not the same as receiving the equivalent 
of what the person causes to exist, or produces. The marginal product of a unit of 
Pi with respect to factor F 2, ■ ■ ■ , F„ is a subjunctive notion; it is the dif- 
ference between the total product ofFi, . . . , F„ used most efficiently (as ef- 
ficiently as known how, given prudence about many costs in finding out the 
most efficient use of factors) and the total product of the most efficient use of 
F 2, . . . , F„ along with a unit less of Fi. But these two different most ef- 
ficient uses of F2, . . . , F„ along with a unit less of Fi (one with the addi- 
tional unit of F i, the other without it) will use them differently. And Fi’s 
marginal product (with respect to the other factors), what everyone reasonably 
would pay for an additional unit of Fi, will not be what it causes ( it causes) 
combined with F 2, . ... F„ and the other units of F 1, but rather the dif- 
ference it makes, the difference there would be if this unit of F 1 were absent 
and the remaining factors were organized most efficiently to cope with its ab- 
sence. Thus marginal productivity theory is not best thought of as a theory of 
actual produced product, of those things whose causal pedigree includes the 
unit of the factor, but rather as a theory of the difference (subjunctively defined) 
made by the presence of a factor. If such a view were connected with justice, it 
would seem to fit best with an entitlement conception. 



1 88 Beyond the Minimal State? 

But if the notion of marginal product were so ineffective that 
factors’ marginal products in actual situations of joint production 
could not be identified by hirers or purchasers of the factors, then 
the resulting distribution to factors would not be patterned in ac- 
cordance with marginal product. Someone who viewed marginal 
productivity theory, where it was applicable, as a patterned theory of 
justice, might think that such situations of joint production and 
indeterminate marginal product provided an opportunity for some 
theory of justice to enter to determine appropriate exchange ratios. 
But an entitlement theorist would find acceptable whatever dis- 
tribution resulted from the party’s voluntary exchanges.* The 
questions about the workability of marginal productivity theory 
are intricate ones . 20 Let us merely note here the strong personal 
incentive for owners of resources to converge to the marginal prod- 
uct, and the strong market pressures tending to produce this 
result. Employers of factors of productions are not all dolts who 
don't know what they’re doing, transferring holdings they value to 
others on an irrational and arbitrary basis. Indeed, Rawls’ position 
on inequalities requires that separate contributions to joint prod- 
ucts be isolable, to some extent at least. For Rawls goes out of his 
way to argue that inequalities are justified if they serve to raise the 
position of the worst-off group in the society, if without the in- 
equalities the worst-off group would be even more worse off. 
These serviceable inequalities stem, at least in part, from the 
necessity to provide incentives to certain people to perform various 
activities or fill various roles that not everyone can do equally well. 
(Rawls is not imagining that inequalities are needed to fill posi- 
tions that everyone can do equally well, or that the most 
drudgery-filled positions that require the least skill will command 
the highest income.) But to whom are the incentives to be paid? To 
which performers of what activities? When it is necessary to pro- 
vide incentives to some to perform their productive activities, 
there is no talk of a joint social product from which no individ- 
ual’s contribution can be disentangled. If the product was all that 

* Readers who believe that Marx's analysis of exchange relations between 
owners of capital and laborers undercuts the view that the set of holdings which 
results from voluntary exchange is legitimate, or who believe it a distortion to 
term such exchanges "voluntary,'' will find some relevant considerations ad- 
duced in Chapter 8. 



Distributive Justice 


189 


inextricably joint, it couldn’t be known that the extra incentives 
were going to the crucial persons; and it couldn’t be known that 
the additional product produced by these now motivated people is 
greater than the expenditure to them in incentives. So it couldn’t 
be known whether the provision of incentives was efficient or not, 
whether it involved a net gain or a net loss. But Rawls’ discussion 
of justifiable inequalities presupposes that these things can be 
known. And so the claim we have imagined about the indivisible, 
nonpartitionable nature of the joint product is seen to dissolve, 
leaving the reasons for the view that social cooperation creates 
special problems of distributive justice otherwise not present, un- 
clear if not mysterious. 


TERMS OF COOPERATION AND THE 
DIFFERENCE PRINCIPLE 


Another entry into the issue of the connection of social cooperation 
with distributive shares brings us to grips with Rawls’ actual dis- 
cussion. Rawls imagines rational, mutually disinterested individ- 
uals meeting in a certain situation, or abstracted from their other 
features not provided for in this situation. In this hypothetical sit- 
uation of choice, which Rawls calls “the original position,” they 
choose the first principles of a conception of justice that is to regu- 
late all subsequent criticism and reform of their institutions. 
While making this choice, no one knows his place in society, his 
class position or social status, or his natural assets and abilities, his 
strength, intelligence, and so forth. 

The principles of justice are chosen behind a veil of ignorance. This en- 
sures that no one is advantaged or disadvantaged in the choice of princi- 
ples by the outcome of natural chance or the contingency of social cir- 
cumstances. Since all are similarly situated and no one is able to design 
principles to favor his particular condition, the principles of justice are 
the result of a fair agreement or bargain . 21 

What would persons in the original position agree to? 

Persons in the initial situation would choose two . . . principles: the 
first requires equality in the assignment of basic rights and duties, while 



190 


Beyond the Minimal State? 


the second holds that social and economic inequalities, for example, 
inequalities of wealth and authority are just only if they result in com- 
pensating benefits for everyone, and in particular for the least advan- 
taged members of society. These principles rule out justifying institu- 
tions on the grounds that the hardships of some are offset by a greater 
good in the aggregate. It may be expedient but it is not just that some 
should have less in order that others may prosper. But there is no injus- 
tice in the greater benefits earned by a few provided that the situation of 
persons not so fortunate is thereby improved. The intuitive idea is that 
since everyone's well-being depends upon a scheme of cooperation with- 
out which no one could have a satisfactory life, the division of advan- 
tages should be such as to draw forth the willing cooperation of everyone 
taking part in it, including those less well situated. Yet this can be ex- 
pected only if reasonable terms are proposed. The two principles men- 
tioned seem to be a fair agreement on the basis of which those better en- 
dowed, or more fortunate in their social position, neither of which we 
can be said to deserve, could expect the willing cooperation of others 
when some workable scheme is a necessary condition of the welfare of 
all . 22 

This second principle, which Rawls specifies as the difference 
principle, holds that the institutional structure is to be so de- 
signed that the worst-off group under it is at least as well off as 
the worst-off group (not necessarily the same group) would be 
under any alternative institutional structure. If persons in the orig- 
inal position follow the minimax policy in making the significant 
choice of principles of justice, Rawls argues, they will choose the 
difference principle. Our concern here is not whether persons in 
the position Rawls describes actually would minimax and actually 
would choose the particular principles Rawls specifies. Still, we 
should question why individuals in the original position would 
choose a principle that focuses upon groups, rather than individ- 
uals. Won’t application of the minimax principle lead each person 
in the original position to favor maximizing the position of the 
worst-off individual? To be sure, this principle would reduce ques- 
tions of evaluating social institutions to the issue of how the 
unhappiest depressive fares. Yet avoiding this by moving the focus 
to groups (or representative individuals) seems ad hoc, and is inad- 
equately motivated for those in the individual position . 23 Nor is it 
clear which groups are appropriately considered; why exclude the 
group of depressives or alcoholics or the representative paraplegic? 

If the difference principle is not satisfied by some institutional 



Distributive Justice 


1 9 I 


structure J , then under J some group G is worse off than it would 
be under another institutional structure I that satisfies the princi- 
ple. If another group F is better off under J than it would be 
under the / favored by the difference principle, is this sufficient to 
say that under J “some . . . have less in order that others may 
prosper”? (Here one would have in mind that G has less in order 
that F prosper. Could one also make the same statement about IP 
Does F have less under I in order that G may prosper?) Suppose 
that in a society the following situation prevailed: 

1 . Group G has amount A and group F has amount B, with B greater 
than A . Also things could be arranged differently so that G would 
have more than A, and F would have less than B. (The different ar- 
rangement might involve a mechanism to transfer some holdings 
from F to G.) 

Is this sufficient to say 

2. G is badly off because F is well off; G is badly off in order that F be 
well off; F’s being well off makes G badly off; G is badly off on ac- 
count of F’s being well off; G is not better off because of how well off 
F is. 

If so, does the truth of statement 2 depend on G’s being in a worse 
position than FP There is yet another possible institutional struc- 
ture K that transfers holdings from the worse-off group G to F, 
making G even more worse off. Does the possibility of K make it 
true to say that, under J, F is not (even) better off because of how 
well off G is? 

We do not normally hold that the truth of a subjunctive (as 
in 1) is alone sufficient for the truth of some indicative causal 
statement (as in 2). It would improve my life in various ways if 
you were to choose to become my devoted slave, supposing I could 
get over the initial discomfort. Is the cause of my present state 
your not becoming my slave? Because your enslaving yourself to a 
poorer person would improve his lot and worsen yours, are we to 
say that the poor person is badly off because you are as well off as 
you are; has he less in order that you may prosper? From 

3. If P were to do act A then Q would not be in situation S. 


we will conclude 



192 Beyond the Minimal State? 

4. P's not doing A is responsible for Q’s being in situation S; P’s not 
doing A causes Q to be in S. 

only if we also believe that 

5. P ought to do act A, or P has a duty to do act A, or P has an 
obligation to do act A, and so forth. 24 

Thus the inference from 3 to 4, in this case, presupposes 5. One 
cannot argue from 3 to 4 as one step in order to get to 5 . The state- 
ment that in a particular situation some have less in order that 
others may prosper is often based upon the very evaluation of a sit- 
uation or an institutional framework that it is introduced to sup- 
port. Since this evaluation does not follow merely from the sub- 
junctive (for example, 1 or 3) an independent argument must be 
produced for it.* 

Rawls holds, as we have seen, that 

since everyone’s well-being depends upon a scheme of cooperation with- 
out which no one could have a satisfactory life, the division of advan- 
tages should be such as to draw forth the willing coooperation of every- 
one taking part in it, including those less well situated. Yet this can be 
expected only if reasonable terms are proposed. The two principles men- 
tioned seem to be a fair agreement on the basis of which those better en- 
dowed or more fortunate in their social position . . . could expect the 
willing cooperation of others when some workable scheme is a necessary 
condition of the welfare of all. 25 

No doubt, the difference principle presents terms on the basis of 
which those less well endowed would be willing to cooperate. 
(What better terms could they propose for themselves?) But is this 
a fair agreement on the basis of which those worse endowed could 
expect the willing cooperation of others? With regard to the exis- 
tence of gains from social cooperation, the situation is symmetri- 
cal. The better endowed gain by cooperating with the worse en- 
dowed, and the worse endowed gain by cooperating with the 
better endowed. Yet the difference principle is not neutral be- 


* Though Rawls does not clearly distinguish 2 from 1 and 4 from 3, I do 
not claim that he makes the illegitimate step of sliding from the latter subjunc- 
tive to the former indicative. Even so, the mistake is worth pointing out 
because it is an easy one to fall into, and it might appear to prop up positions 
we argue against. 



Distributive Justice 


193 


tween the better and the worse endowed. Whence the asymmetry? 

Perhaps the symmetry is upset if one asks how much each gains 
from the social cooperation. This question might be understood in 
two ways. How much do people benefit from social cooperation, as 
compared to their individual holdings in a wowcooperative scheme? 
That is, how much is T—S-, for each individual i? Or, alterna- 
tively, how much does each individual gain from general social co- 
operation, as compared, not with no cooperation, but with more 
limited cooperation? The latter is the more appropriate question 
with regard to general social cooperation. For failing general 
agreement on the principles to govern how the benefits of general 
social cooperation are to be held, not everyone will remain in a 
noncooperative situation if there is some other beneficial coopera- 
tive arrangement involving some, but not all, people, whose par- 
ticipants can agree. These people will participate in this more nar- 
row cooperative arrangement. To focus upon the benefits of the 
better and the worse endowed cooperating together, we must try to 
imagine less extensive schemes of partitioned social cooperation in 
which the better endowed cooperate only among themselves and 
the worse endowed cooperate only among themselves, with no 
cross-cooperation. The members of both groups gain from the in- 
ternal cooperation within their respective groups and have larger 
shares than they would if there were no social cooperation at all. 
An individual benefits from the wider system of extensive coopera- 
tion between the better and the worse endowed to the extent of his 
incremental gain from this wider cooperation; namely, the amount 
by which his share under a scheme of general cooperation is greater 
than it would be under one of limited intragroup (but not cross- 
group) cooperation. General cooperation will be of more benefit to 
the better or to the worse endowed if (to pick a simple criterion) 
the mean incremental gain from general cooperation (when com- 
pared with limited intragroup cooperation) is greater in one group 
than it is in the other. 

One might speculate about whether there is an inequality be- 
tween the groups’ mean incremental gains and, if so, which way it 
goes. If the better-endowed group includes those who manage to 
accomplish something of great economic advantage to others, such 
as new inventions, new ideas about production or ways of doing 



194 


Beyond the Minimal State? 

things, skill at economic tasks, and so on,* it is difficult to avoid 
concluding that the less well endowed gain more than the better en- 
dowed do from the scheme of general cooperation. What follows 
from this conclusion? I do not mean to imply that the better en- 
dowed should get even more than they get under the entitlement 
system of general social cooperation. + What does follow from the 
conclusion is a deep suspicion of imposing, in the name of fair- 
ness, constraints upon voluntary social cooperation (and the set of 


* They needn’t be better endowed, from birth. In the context in which Rawls 
uses it, all “better endowed” means is: accomplishes more of economic value, 
able to do this, has a high marginal product, and so forth. (The role that 
unpredictable factors play in this complicates imagining a prior partitioning of 
the two groups.) The text follows Rawls in categorizing persons as “better” and 
“worse” endowed only in order to criticize the considerations he adduces for his 
theory. The entitlement theory does not rest upon any assumption that the clas- 
sification is an important one, or even a possible one, or upon any elitist presup- 
position. 

Since the entitlement theorist does not accept the patterned principle “to 
each according to his natural endowment,” he can easily grant that what an ex- 
ercised endowment brings in the market will depend upon the endowments of 
others and how they choose to exercise them, upon the market-expressed desires 
of buyers, upon the alternate supply of what he offers and of what others may 
substitute for what he offers, and upon other circumstances summing the 
myriad choices and actions of others. Similarly, we saw earlier that the similar 
considerations Rawls adduces about the social factors upon which the marginal 
product of labor depends (' Theory of Justice, p. 308) will not faze an entitlement 
theorist, even though they might undercut the rationale put forth by a pro- 
ponent of the patterned principle of distribution according to marginal product. 

f Supposing they could identify themselves and each other, they might try 
to exact a larger share by banding together as a group and bargaining jointly 
with the others. Given the large numbers of persons involved and the incentive 
for some of the better-endowed individuals to break ranks and reach separate 
agreements with the worse endowed, if such a coalition of the better endowed is 
unable to impose sanctions on its defectors it will dissolve. The better endowed 
remaining in the coalition may use boycott as a “sanction," and refuse to coop- 
erate with a defector. To break the coalition, those less well endowed would 
have to (be able to) offer someone better endowed sufficient incentive to defect 
to make up for his loss through no longer being able to cooperate with the other 
better-endowed persons. Perhaps it would pay for someone to defect from the 
coalition only as part of a sizable group of defectors, which defecting group the 
initial coalition might try to keep small by special offers to individuals to defect 
from it, and so on. The problem is a complicated one, further complicated by 
the obvious fact (despite our use of Rawls' classificatory terminology) that there 
is no sharp line of cleavage between the endowments of people to determine 
which groups would form. 



Distributive Justice 


195 


holdings that arises from it) so that those already benefiting most 
from this general cooperation benefit even more! 

Rawls would have us imagine the worse-endowed persons say 
something like the following: “Look, better endowed: you gain by 
cooperating with us. If you want our cooperation you’ll have to ac- 
cept reasonable terms. We suggest these terms: We’ll cooperate 
with you only if we get as much as possible. That is, the terms of 
our cooperation should give us that maximal share such that, if it 
was tried to give us more, we’d end up with less.” How generous 
these proposed terms are might be seen by imagining that the 
better endowed make the almost symmetrical opposite proposal: 
“Look, worse endowed: you gain by cooperating with us. If you 
want our cooperation you’ll have to accept reasonable terms. We 
propose these terms: We’ll cooperate with you so long as we get as 
much as possible. That is, the terms of our cooperation should 
give us the maximal share such that, if it was tried to give us 
more, we’d end up with less.” If these terms seem outrageous, as 
they are, why don’t the terms proposed by those worse endowed 
seem the same? Why shouldn’t the better endowed treat this latter 
proposal as beneath consideration, supposing someone to have 
the nerve explicitly to state it? 

Rawls devotes much attention to explaining why those less well 
favored should not complain at receiving less. His explanation, 
simply put, is that because the inequality works for his advantage, 
someone less well favored shouldn’t complain about it; he receives 
more in the unequal system than he would in an equal one. 
(Though he might receive still more in another unequal system 
that placed someone else below him.) But Rawls discusses the 
question of whether those more favored will or should find the 
terms satisfactory only in the following passage, where A and B are 
any two representative men with A being the more favored: 

The difficulty is to show that A has no grounds for complaint. Perhaps 
he is required to have less than he might since his having more would 
result in some loss to B. Now what can be said to the more favored 
man? To begin with, it is clear that the well-being of each depends on a 
scheme of social cooperation without which no one could have a satisfac- 
tory life. Secondly, we can ask for the willing cooperation of everyone 
only if the terms of the scheme are reasonable. The difference principle, 
then, seems to be a fair basis on which those better endowed, or more 



196 


Beyond the Minimal State? 


fortunate in their social circumstances, could expect others to collaborate 
with them when some workable arrangement is a necessary condition of 
the good of all. 26 

What Rawls imagines being said to the more favored men does not 
show that these men have no grounds for complaint, nor does it at 
all diminish the weight of whatever complaints they have. That 
the well-being of all depends on social cooperation without which 
no one could have a satisfactory life could also be said to the less 
well endowed by someone proposing any other principle, includ- 
ing that of maximizing the position of the best endowed. Similarly 
for the fact that we can ask for the willing cooperation of everyone 
only if the terms of the scheme are reasonable. The question is: 
What terms would be reasonable? What Rawls imagines being said 
thus far merely sets up his problem; it doesn’t distinguish his 
proposed difference principle from the almost symmetrical coun- 
terproposal that we imagined the better endowed making, or from 
any other proposal. Thus, when Rawls continues, “The difference 
principle, then, seems to be a fair basis on which those best en- 
dowed, or more fortunate in their social circumstances, could ex- 
pect others to collaborate with them when some workable arrang- 
ment is a necessary condition of the good of all,” the presence of 
the “then” in his sentence is puzzling. Since the sentences which 
precede it are neutral between his proposal and any other proposal, 
the conclusion that the difference principle presents a fair basis for 
cooperation cannot follow from what precedes it in this passage. 
Rawls is merely repeating that it seems reasonable; hardly a con- 
vincing reply to anyone to whom it doesn’t seem reasonable.* 


* I treat Rawls' discussion here as one concerning better- and worse-endowed 
individuals who know they are so. Alternatively, one might imagine that 
these considerations are to be weighed by someone in the original position. (“If I 
turn out to be better endowed then . . . ; if I turn out to be worse endowed 
then. . . .") But this construal will not do. Why would Rawls bother saying, 
“The two principles . . . seem to be a fair agreement on the basis of which 
those better endowed or more fortunate in their social position could expect the 
willing cooperation of others” ( Theory of Justice, p. 15). Who is doing the expect- 
ing when? How is this to be translated into subjunctives to be contemplated by 
someone in the original position? Similarly, questions arise about Rawls’ say- 
ing, "The difficulty is to show that A has no grounds for complaint. Perhaps he 
is required to have less than he might since his having more would result in 



Distributive Justice 


197 


Rawls has not shown that the more favored man A has no grounds 
for complaint at being required to have less in order that another 
B might have more than he otherwise would. And he can’t show 
this, since A does have grounds for complaint. Doesn’t he? 


some loss to B. Now what can be said to the more favored man? . . . The difference 
principle then seems to be a fair basis on which those better endowed . . . 
could expect others to collaborate with them . . .” (' Theory of Justice, p. 103, 
my italics). Are we to understand this as: someone in the original position 
wonders what to say to himself as he then thinks of the possibility that he will 
turn out to be one of the better endowed? And does he then say that the dif- 
ference principle then seems a fair basis for cooperation despite the fact that, and 
even while, he is contemplating the possibility that he is better endowed? Or 
does he say then that even later if and when he knows he is better endowed the 
difference principle will seem fair to him at that later time? And when are we to 
imagine him possibly complaining? Not while in the original position, for then 
he is agreeing to the difference principle. Nor does he worry, while in the pro- 
cess of deciding in the original position, that he will complain later. For he 
knows that he will have no cause to complain later at the effects of whatever 
principle he himself rationally will choose soon in the original position. Are we 
to imagine him complaining against himself? And isn’t the answer to any later 
complaint, “You agreed to it (or you would have agreed to it if so originally 
positioned)” ? What “difficulty” does Rawls concern himself with here? Trying 
to squeeze it into the original position makes it completely mysterious. And 
what is thinking of what is a “fair agreement” (sect. 3) or a “fair basis” (p. 103) 
doing here anyway, in the midst of the rational self-interested calculations of 
persons in the original position, who do not then knowingly possess, or at any 
rate utilize, particular moral notions? 

I see no coherent way to incorporate how Rawls treats and speaks of the issue 
of the terms of cooperation between the better and the worse endowed into the 
structure and perspective of the original position. Therefore my discussion con- 
siders Rawls here as addressing himself to individuals outside the original posi- 
tion, either to better-endowed individuals or to his readers, to convince them 
that the difference principle which Rawls extracts from the original position is 
fair. It is instructive to compare how Rawls imagines justifying the social order 
to a person in the worst-off group in an unequal society. Rawls wants to tell 
this person that the inequalities work out to his advantage. This is told to 
someone who knows who he is: “The social order can be justified to everyone, 
and in particular to those who are least favored” (p. 103). Rawls does not want 
to say, “You would have gambled, and you lost,” or any such thing, even “You 
chose it then in the original position”; nor does he wish merely to address some- 
one in the original position. He also wants a consideration apart from the origi- 
nal position that will convince someone who knows of his inferior position in an 
unequal society. To say, “You have less in order that I may prosper,” would not 
convince someone who knows of his inferior position, and Rawls rightly rejects 
it, even though its subjunctive analogue for someone in the original position, 
if we could make sense of this, would not be without force. 




Beyond the Minimal State? 


198 


THE ORIGINAL POSITION AND 
END-RESULT PRINCIPLES 

How can it have been supposed that these terms offered by the less 
well endowed are fair? Imagine a social pie somehow appearing so 
that no one has any claim at all on any portion of it, no one has any 
more of a claim than any other person; yet there must be unani- 
mous agreement on how it is to be divided. Undoubtedly, apart 
from threats or holdouts in bargaining, an equal distribution 
would be suggested and found plausible as a solution. (It is, in 
Schelling’s sense, a focal point solution.) If somehow the size of the 
pie wasn’t fixed, and it was realized that pursuing an equal dis- 
tribution somehow would lead to a smaller total pie than other- 
wise might occur, the people might well agree to an unequal dis- 
tribution which raised the size of the least share. But in any actual 
situation, wouldn’t this realization reveal something about dif- 
ferential claims on parts of the pie? Who is it that could make the 
pie larger, and would do it if given a larger share, but not if given 
an equal share under the scheme of equal distribution? To whom is 
an incentive to be provided to make this larger contribution? 
(There’s no talk here of inextricably entangled joint product; it’s 
known to whom incentives are to be offered, or at least to whom a 
bonus is to be paid after the fact.) Why doesn’t this identifiable 
differential contribution lead to some differential entitlement? 

If things fell from heaven like manna, and no one had any 
special entitlement to any portion of it, and no manna would fall 
unless all agreed to a particular distribution, and somehow the 
quantity varied depending on the distribution, then it is plausible 
to claim that persons placed so that they couldn’t make threats, or 
hold out for specially large shares, would agree to the difference 
principle rule of distribution. But is this the appropriate model for 
thinking about how the things people produce are to be distrib- 
uted? Why think the same results should obtain for situations 
where there are differential entitlements as for situations where 
there are not? 

A procedure that founds principles of distributive justice on 
what rational persons who know nothing about themselves or their 
histories would agree to guarantees that end-state principles of justice 



Distributive Justice 


199 


will be taken as fundamental. Perhaps some historical principles of 
justice are derivable from end-state principles, as the utilitarian 
tries to derive individual rights, prohibitions on punishing the in- 
nocent, and so forth, from his end-state principle; perhaps such 
arguments can be constructed even for the entitlement principle. 
But no historical principle, it seems, could be agreed to in the 
first instance by the participants in Rawls’ original position. For 
people meeting together behind a veil of ignorance to decide who 
gets what, knowing nothing about any special entitlements people 
may have, will treat anything to be distributed as manna from 
heaven.* 

Suppose there were a group of students who have studied during 
a year, taken examinations, and received grades between o and 
100 which they have not yet learned of. They are now gathered 
together, having no idea of the grade any one of them has re- 
ceived, and they are asked to allocate grades among themselves so 
that the grades total to a given sum (which is determined by the 
sum of the grades they actually have received from the teacher). 
First, let us suppose they are to decide jointly upon a particular 
distribution of grades; they are to give a particular grade to each 
identifiable one of them present at the meeting. Here, given suf- 
ficient restrictions on their ability to threaten each other, they 
probably would agree to each person receiving the same grade, to 
each person’s grade being equal to the total divided by the number 
of people to be graded. Surely they would not chance upon the par- 
ticular set of grades they already have received. Suppose next that 
there is posted on a bulletin board at their meeting a paper headed 
ENTITLEMENTS, which lists each person’s name with a grade 
next to it, the listing being identical to the instructor’s gradings. 
Still, this particular distribution will not be agreed to by those 
having done poorly. Even if they know what “entitlement” means 
(which perhaps we must suppose they don’t, in order to match the 


* Do the people in the original position ever wonder whether they have the 
right to decide how everything is to be divided up? Perhaps they reason that 
since they are deciding this question, they must assume they are entitled to do 
so; and so particular people can't have particular entitlements to holdings (for 
then they wouldn’t have the right to decide together on how all holdings are to 
be divided); and hence everything legitimately may be treated like manna from 
heaven. 



200 


Beyond the Minimal State? 


absence of moral factors in the calculations of persons in Rawls’ 
original position), why should they agree to the instructor’s dis- 
tribution? What self-interested reason to agree to it would they 
have? 

Next suppose that they are unanimously to agree not to a partic- 
ular distribution of grades, but rather to general principles to gov- 
ern the distribution of grades. What principle would be selected? 
The equality principle, which gives each person the same grade, 
would have a prominent chance. And if it turned out that the total 
was variable depending upon how they divided it, depending on 
which of them got what grade, and a higher grade was desirable 
though they were not competing among each other (for example, 
each of them was competing for some position with the members 
of separate distinct groups), then the principle of distributing 
grades so as to maximize the lowest grades might seem a plausible 
one. Would these people agree to the non-end-state historical prin- 
ciple of distribution: give people grades according to how their ex- 
aminations were evaluated by a qualified and impartial observer? * 
If all the people deciding knew the particular distribution that 
would be yielded by this historical principle, they wouldn’t agree 
to it. For the situation then would be equivalent to the earlier one 
of their deciding upon a particular distribution, in which we al- 
ready have seen they would not agree to the entitlement distribu- 
tion. Suppose then that the people do not know the particular dis- 
tribution actually yielded by this historical principle. They cannot 
be led to select this historical principle because it looks just, or 
fair, to them; for no such notions are allowed to be at work in the 
original position. (Otherwise people would argue there, like here, 
about what justice requires.) Each person engages in a calculation 
to decide whether it will be in his own interests to accept this his- 
torical principle of distribution. Grades, under the historical prin- 

* I do not mean to assume that all teachers are such, nor even that learning in 
universities should be graded. All I need is some example of entitlement, the 
details of which the reader will have some familiarity with, to use to examine 
decision making in the original position. Grading is a simple example, though 
not a perfect one, entangled as it is with whatever ultimate social purposes the 
ongoing practice serves. We may ignore this complication, for their selecting 
the historical principle on the grounds that it effectively serves those purposes 
would illustrate our point below that their fundamental concerns and fun- 
damental principles are end-state ones. 



Distributive Justice 


201 


ciple, depend upon nature and developed intelligence, how hard 
the people have worked, accident, and so on, factors about which 
people in the original position know almost nothing. (It would be 
risky for someone to think that since he is reasoning so well in 
thinking about the principles, he must be one of the intellectually 
better endowed. Who knows what dazzling argument the others 
are reasoning their way through, and perhaps keeping quiet about 
for strategic reasons.) Each person in the original position will do 
something like assigning probability distributions to his place 
along these various dimensions. It seems unlikely that each per- 
son’s probability calculations would lead to the historical-en- 
titlement principle, in preference to every other principle. Con- 
sider the principle we may call the reverse-entitlement principle. 
It recommends drawing up a list of the historical entitlements in 
order of magnitude, and giving the most anyone is entitled to, to 
the person entitled to the least; the second most to the person en- 
titled to the second least, and so on . 27 Any probability calcula- 
tions of self-interested persons in Rawls’ original position, or any 
probability calculations of the students we have considered, will 
lead them to view the entitlement and the reverse-entitlement 
principles as ranked equally insofar as their own self-interest is 
concerned! (What calculations could lead them to view one of the 
principles as superior to the other?) Their calculations will not lead 
them to select the entitlement principle. 

The nature of the decision problem facing persons deciding upon 
principles in an original position behind a veil of ignorance limits 
them to end-state principles of distribution. The self-interested 
person evaluates any non-end-state principle on the basis of how it 
works out for him; his calculations about any principle focus on 
how he ends up under the principle. (These calculations include 
consideration of the labor he is yet to do, which does not appear in 
the grading example except as the sunk cost of the labor already 
done.) Thus for any principle, an occupant of the original position 
will focus on the distribution D of goods that it leads to, or a 
probability distribution over the distributions D 1, . . . , D» it 
may lead to, and upon his probabilities of occupying each position 
in each D> profile, supposing it to obtain. The point would remain 
the same if, rather than using personal probabilities, he uses some 
other decision rule of the sort discussed by decision theorists. In 



202 


Beyond the Minimal State? 


these calculations, the only role played by the principle is that of 
generating a distribution of goods (or whatever else they care 
about) or of generating a probability distribution over distribu- 
tions of goods. Different principles are compared solely by com- 
paring the alternative distributions they generate. Thus the princi- 
ples drop out of the picture, and each self-interested person makes 
a choice among alternative end-state distributions. People in the 
original position either directly agree to an end-state distribution 
or they agree to a principle; if they agree to a principle, they do it 
solely on the basis of considerations about end-state distributions. 
The fundamental principles they agree to, the ones they can all con- 
verge in agreeing upon, must be end-state principles. 

Rawls’ construction is incapable of yielding an entitlement or 
historical conception of distributive justice. The end-state prin- 
ciples of justice yielded by his procedure might be used in an 
attempt to derive, when conjoined with factual information, 
historical -entitlement principles, as derivative principles falling 
under a nonentitlement conception of justice . 28 It is difficult to 
see how such attempts could derive and account for the particular 
convolutions of historical-entitlement principles. And any deriva- 
tions from end-state principles of approximations of the principles 
of acquisition, transfer, and rectification would strike one as simi- 
lar to utilitarian contortions in trying to derive (approximations 
of) usual precepts of justice; they do not yield the particular result 
desired, and they produce the wrong reasons for the sort of result 
they try to get. If historical -entitlement principles are funda- 
mental, then Rawls’ construction will yield approximations of 
them at best; it will produce the wrong sorts of reasons for them, 
and its derived results sometimes will conflict with the precisely 
correct principles. The whole procedure of persons choosing prin- 
ciples in Rawls’ original position presupposes that no historical-en- 
titlement conception of justice is correct. 

It might be objected to our argument that Rawls’ procedure is 
designed to establish all facts about justice; there is no independent 
notion of entitlement, not provided by his theory, to stand on in 
criticizing his theory. But we do not need any particular developed 
historical-entitlement theory as a basis from which to criticize 
Rawls’ construction. If any such fundamental historical-enti- 
tlement view is correct, then Rawls’ theory is not. We are thus 



Distributive Justice 


203 


able to make this structural criticism of the type of theory Rawls 
presents and the type of principles it must yield, without first hav- 
ing formulated fully a particular historical-entitlement theory as 
an alternative to his. We would be ill advised to accept Rawls’ 
theory and his construal of the problem as one of which principles 
would be chosen by rational self-interested individuals behind a 
veil of ignorance, unless we were sure that no adequate historical- 
entitlement theory was to be gotten. 

Since Rawls’ construction doesn’t yield a historical or en- 
titlement conception of justice, there will be some feature(s) of his 
construction in virtue of which it doesn’t. Have we done anything 
other than focus upon the particular feature(s), and say that this 
makes Rawls’ construction incapable in principle of yielding an 
entitlement or historical conception of justice? This would be a 
criticism without any force at all, for in this sense we would have 
to say that the construction is incapable in principle of yielding 
any conception other than the one it actually yields. It seems clear 
that our criticism goes deeper than this (and I hope it is clear to 
the reader); but it is difficult to formulate the requisite criterion of 
depth. Lest this appear lame, let us add that as Rawls states the 
root idea underlying the veil of ignorance, that feature which is 
the most prominent in excluding agreement to an entitlement 
conception, it is to prevent someone from tailoring principles to 
his own advantage, from designing principles to favor his particu- 
lar condition. But not only does the veil of ignorance do this; it 
ensures that no shadow of entitlement considerations will enter the 
rational calculations of ignorant, nonmoral individuals constrained 
to decide in a situation reflecting some formal conditions of moral- 
ity.* Perhaps, in a Rawls -like construction, some condition weaker 
than the veil of ignorance could serve to exclude the special tailor- 
ing of principles, or perhaps some other “structural-looking” fea- 
ture of the choice situation could be formulated to mirror en- 


* Someone might think entitlement principles count as specially tailored in 
a morally objectionable way, and so he might reject my claim that the veil of 
ignorance accomplishes more than its stated purpose. Since to specially tailor 
principles is to tailor them unfairly for one’s own advantage, and since the ques- 
tion of the fairness of the entitlement principle is precisely the issue, it is dif- 
ficult to decide which begs the question: my criticism of the strength of the veil 
of ignorance, or the defense against this criticism which I imagine in this note. 



204 


Beyond the Minimal State? 


titlement considerations. But as it stands there is no reflection of 
entitlement considerations in any form in the situation of those in 
the original position; these considerations do not enter even to be 
overridden or outweighed or otherwise put aside. Since no glim- 
mer of entitlement principles is built into the structure of the situ- 
ation of persons in the original position, there is no way these 
principles could be selected; and Rawls’ construction is incapable 
in principle of yielding them. This is not to say, of course, that 
the entitlement principle (or “the principle of natural liberty”) 
couldn’t be written on the list of principles to be considered by 
those in the original position. Rawls doesn’t do even this, perhaps 
because it is so transparently clear that there would be no point in 
including it to be considered there. 


MACRO AND MICRO 

We noted earlier the objection which doubted whether there is any 
independent notion of entitlement. This connects with Rawls’ in- 
sistence that the principles he formulates are to be applied only to 
the fundamental macrostructure of the whole society, and that no 
micro counterexample to them will be admissible. The difference 
principle is, on the face of it, unfair (though that will be of no 
concern to anyone deciding in the original position); and a wide 
gamut of counterexamples to it can be produced that focus on 
small situations that are easy to take in and manage. But Rawls 
does not claim the difference principle is to apply to every situa- 
tion; only to the basic structure of the society. How are we to 
decide if it applies to that? Since we may have only weak con- 
fidence in our intuitions and judgments about the justice of the 
whole structure of society, we may attempt to aid our judgment 
by focusing on microsituations that we do have a firm grasp of. 
For many of us, an important part of the process of arriving at 
what Rawls calls “reflective equilibrium” will consist of thought 
experiments in which we try out principles in hypothetical micro- 
situations. If, in our considered judgment, they don’t apply there 
then they are not universally applicable. And we may think that 
since correct principles of justice are universally applicable, princi- 



Distributive Justice 


205 


pies that fail for microsituations cannot be correct. Since Plato, at 
any rate, that has been our tradition; principles may be tried out 
in the large and in the small. Plato thought that writ large the 
principles are easier to discern; others may think the reverse. 

Rawls, however, proceeds as though distinct principles apply to 
macro and micro contexts, to the basic structure of society and to 
the situations we can take in and understand. Are the fundamental 
principles of justice emergent in this fashion, applying only to the 
largest social structure yet not to its parts? Perhaps one thinks of 
the possibility that a whole social structure is just, even though 
none of its parts is, because the injustice in each part somehow 
balances out or counteracts another one, and the total injustice 
ends up being balanced out or nullified. But can a part satisfy the 
most fundamental principle of justice yet still clearly be unjust, 
apart from its failure to perform any supposed task of counter- 
balancing another existing injustice? Perhaps so, if a part involves 
some special domain. But surely a regular, ordinary, everyday 
part, possessing no very unusual features, should turn out to be 
just when it satisfies the fundamental principles of justice; other- 
wise, special explanations must be offered. One cannot say merely 
that one is speaking of principles to apply only to the fundamental 
structure, so that micro counterexamples do not tell. In virtue of 
what features of the basic structure, features not possessed by 
microcases, do special moral principles apply that would be unac- 
ceptable elsewhere? 

There are special disadvantages to proceeding by focusing only 
on the intuitive justice of described complex wholes. For complex 
wholes are not easily scanned; we cannot easily keep track of every- 
thing that is relevant. The justice of a whole society may depend 
on its satisfying a number of distinct principles. These principles, 
though individually compelling (witness their application to a 
wide range of particular microcases), may yield surprising results 
when combined together. That is, one may be surprised at which, 
and only which, institutional forms satisfy all the principles. 
(Compare the surprise at discovering what, and only what, satisfies 
a number of distinct and individually compelling conditions of ad- 
equacy; and how illuminating such discoveries are.) Or perhaps it 
is one simple principle which is to be writ large, and what things 
look like when this is done is very surprising, at first. I am not 



20 6 


Beyond the Minimal State? 

claiming that new principles emerge in the large, but that how the 
old microprinciples turn out to be satisfied in the large may sur- 
prise. If this is so, then one should not depend upon judgments 
about the whole as providing the only or even the major body of 
data against which to check one’s principles. One major path to 
changing one’s intuitive judgments about some complex whole is 
through seeing the larger and often surprising implications of 
principles solidly founded at the micro level. Similarly, discovering 
that one’s judgments are wrong or mistaken often surely will in- 
volve overturning them by stringent applications of principles 
grounded on the micro level. For these reasons it is undesirable to 
attempt to protect principles by excluding microtests of them. 

The only reason I have thought of for discounting microtests of 
the fundamental principles is that microsituations have particular 
entitlements built into them. Of course, continues the argument, 
the fundamental principles under consideration will run afoul of 
these entitlements, for the principles are to operate at a deeper 
level than such entitlements. Since they are to operate at the level 
that underlies such entitlements, no microsituation that includes 
entitlements can be introduced as an example by which to test 
these fundamental principles. Note that this reasoning grants that 
Rawls’ procedure assumes that no fundamental entitlement view is 
correct, that it assumes there is some level so deep that no en- 
titlements operate that far down. 

May all entitlements be relegated to relatively superficial levels? 
For example, people’s entitlements to the parts of their own bod- 
ies? An application of the principle of maximizing the position of 
those worst off might well involve forceable redistribution of bod- 
ily parts (“You’ve been sighted for all these years; now one — or 
even both — of your eyes is to be transplanted to others”), or 
killing some people early to use their bodies in order to provide 
material necessary to save the lives of those who otherwise would 
die young . 29 To bring up such cases is to sound slightly hys- 
terical. But we are driven to such extreme examples in examining 
Rawls’ prohibition on micro counterexamples. That not all en- 
titlements in microcases are plausibly construed as superficial, and 
hence as illegitimate material by which to test out suggested prin- 
ciples, is made especially clear if we focus on those entitlements 
and rights that most clearly are not socially or institutionally 



Distributive Justice 


207 


based. On what grounds are such cases, whose detailed specifica- 
tions I leave to the ghoulish reader, ruled inadmissible? On what 
grounds can it be claimed that the fundamental principles of jus- 
tice need apply only to the fundamental institutional structure of a 
society? (And couldn’t we build such redistributive practices con- 
cerning bodily parts or the ending of people’s lives into the fun- 
damental structure of a society?) 

It is ironic that we criticize Rawls’ theory for its fundamental 
incompatibility with historical-entitlement conceptions of justice. 
For Rawls’ theory itself describes a process (abstractly conceived) 
with a result. He does not present a direct deductive argument for 
his two principles of justice from other statements that entail 
them. Any deductive formulation of Rawls’ argument would con- 
tain metastatements, statements about principles: such as, any 
principles agreed to by persons in a certain situation are correct. 
Combined with an argument showing that persons in that situa- 
tion would agree to principles P, one can deduce that P is correct, 
and then deduce that P. At some places in the argument, “P” ap- 
pears in quotes, distinguishing the argument from a direct deduc- 
tive argument for the truth of P. Instead of a direct deductive 
argument, a situation and process are specified, and any principles 
that would emerge from that situation and process are held to con- 
stitute the principles of justice. (Here I ignore the complicated in- 
terplay between which principles of justice one wants to derive and 
which initial situation one specifies.) Just as for an entitlement 
theorist any set of holdings that emerges from a legitimate process 
(specified by the principle of transfer) is just, so for Rawls any set 
of principles that emerges from the original position by the con- 
strained process of unanimous agreement is the set of (correct) 
principles of justice. Each theory specifies starting points and pro- 
cesses of transformation, and each accepts whatever comes out. Ac- 
cording to each theory, whatever comes out is to be accepted 
because of its pedigree, its history. Any theory which gets to a 
process must start with something which is not itself justified by 
being the outcome of a process (otherwise, it should start farther 
back) — namely, either with general statements arguing for the 
fundamental priority of the process, or with the process itself. En- 
titlement theory and Rawls’ theory each get to a process. En- 
titlement theory specifies a process for generating sets of holdings. 



208 


Beyond the Minimal State? 


The three principles of justice (in acquisition, transfer, and rec- 
tification) that underlie this process, having this process as their 
subject matter, are themselves process principles rather than end- 
state principles of distributive justice. They specify an ongoing 
process, without fixing how it is to turn out, without providing 
some external patterned criterion it must meet. Rawls’ theory ar- 
rives at a process P for generating principles of justice. This pro- 
cess P involves people in the original position agreeing to princi- 
ples of justice behind a veil of ignorance. According to Rawls, any 
principles emerging from this process P will be the principles of 
justice. But this process P for generating principles of justice can- 
not, we already have argued, itself generate process principles as 
the fundamental principles of justice. P must generate end-state or 
end-result principles. Even though the difference principle, in 
Rawls’ theory, is to apply to an ongoing and continuing institu- 
tional process (one that includes derived entitlements based upon in- 
stitutional expectations under the principle, and derived elements 
of pure procedural justice, and so on), it is an end-result principle 
(but not a current time-slice principle). The difference principle 
fixes how the ongoing process is to turn out and provides an exter- 
nal patterned criterion it must meet; any process is rejected which 
fails to meet the test of the criterion. The mere fact that a princi- 
ple regulates an ongoing institutional process does not make it a 
process principle. If it did, the utilitarian principle would also be 
a process principle, rather than the end-result principle it is. 

The structure of Rawls’ theory thus presents a dilemma. If 
processes are so great, Rawls’ theory is defective because it is in- 
capable of yielding process principles of justice. If processes are not 
so great, then insufficient support has been provided for the 
principles yielded by Rawls’ process P for arriving at principles. 
Contract arguments embody the assumption that anything that 
emerges from a certain process is just. Upon the force of this fun- 
damental assumption rests the force of a contract argument. Surely 
then no contract argument should be structured so as to preclude 
process principles being the fundamental principles of distributive 
justice by which to judge the institutions of a society; no contract 
argument should be structured so as to make it impossible that its 
results be of the same sort as the assumptions upon which it 
rests . 30 If processes are good enough to found a theory upon, they 



Distributive Justice 


209 


are good enough to be the possible result of the theory. One can’t 
have it both ways. 

We should note that the difference principle is an especially 
strong kind of patterned end-state principle. Let us say that a 
principle of distribution is organic if an unjust distribution, ac- 
cording to the principle, can be gotten from one the principle 
deems just, by deleting (in imagination) some people and their 
distributive shares. Organic principles focus on features dependent 
upon the overall pattern. In contrast, patterned principles of the 
form “to each according to his score on a particular natural dimen- 
sion D” are not organic principles. If a distribution satisfies this 
principle, it will continue to do so when some people and their 
holdings are deleted, for this deletion will not affect the ratios of 
the remaining people’s holdings, or the ratios of their scores along 
the dimension D. These unchanged ratios will continue to be the 
same and will continue to satisfy the principle. 

The difference principle is organic. If the least well-off group 
and their holdings are deleted from a situation, there is no guaran- 
tee that the resulting situation and distribution will maximize the 
position of the new least well-off group. Perhaps that new bottom 
group could have more if the top group had even less (though 
there was no way to transfer from the top group to the previous 
bottom group).* 

Failure to satisfy the deletion condition (that a distribution 
remains just under deletion of people and their holdings) marks off 
organic principles. Consider also the addition condition, which 
holds that if two distributions (over disjoint sets of individuals) are 
just then so is the distribution which consists of the combination 
of these two just distributions. (If the distribution on earth is just, 
and that on some planet of a distant star is just, then so is the sum 
distribution of the two.) Principles of distribution of the form “to 
each according to his score on natural dimension D” violate this 
condition, and therefore (let us say) are nonaggregative. For though 
within each group all ratios of shares match ratios of scores on 

* The difference principle thus creates two conflicts of interest: between those 
at the top and those at bottom; and between those in the middle and those at 
bottom, for if those at bottom were gone the difference principle might apply 
to improve the position of those in the middle, who would become the new 
bottom group whose position is to be maximized. 



2 10 


Beyond the Minimal State? 

D, they needn’t match between the groups.* The entitlement prin- 
ciple of justice in holdings satisfies both the deletion and the 
addition conditions; the entitlement principle is nonorganic and 
aggregative . 

We should not leave the subject of the properties of the dif- 
ference principle without mentioning the interesting but I think 
mistaken speculation of Thomas Scanlon that “there is no plausible 
principle which is distinct from the Difference Principle and inter- 
mediate between it and strict equality.” 31 How can it be that no 
plausible egalitarian principle short of absolute equality would 
exclude great inequalities in order to achieve a slight benefit for the 
worst-off representative man? For the egalitarian, inequality is a 
cost, a minus-factor. The strict egalitarian doesn’t allow any in- 
equality at all, treating the cost of an inequality as infinite. The 
difference principle allows any amount of this cost provided there 
is some benefit (to the worst-off group) however small. This doesn’t 
treat inequality as a significant cost. I have phrased my comments 
so that the following principle, call it Egalitarian General Princi- 
ple I, will leap to mind: An inequality is justified only if its 
benefits outweigh its costs. Following Rawls, suppose its benefits 
are only those to the worst-off group. How shall we measure its 
costs (and in a way so that they are comparable to its benefits)? 
The costs should represent the total amount of inequality in the 
society, which might be variously treated. So let us consider as the 
measure of inequality in a particular system (and hence its cost) 
the difference between the situation of the best-off representative 
man and the worst-off representative man. Let X* be the share of 
the worst-off representative man under System X; let X B be the 
share of the best-off representative man under X. Let E be an ef- 
ficient system of equality (in which everyone gets no less a share 
than in any other equal system). (E B = E w ) Thus we get the follow- 
ing First Specification of Egalitarian General Principle I. (Other 
specifications would use other measures of inequality.) An un- 


* Let the second group have individuals who score half as much on D and 
have shares twice as large as the corresponding individuals in the first group, 
where in the first group the ratios between any two individuals’ shares and their 
scores on D are the same. It follows that within the second group, the ratio of 
any two individuals’ shares will be the same as the ratio of their scores. Yet be- 
tween groups this identity of ratios will not hold. 



Distributive Justice 


21 i 


equal system U is unjustified if U B — U w > U w — E w . (Or should it 
be 3 = ?) An inequality is justified only if its benefit to the worst-off 
group (U w — E w ) is greater than (or equal to?) the cost of the in- 
equality (U B — U w ). (Note that this involves measurement on an 
interval scale, and interpersonal comparisons.) This is an interme- 
diate position the egalitarian might find attractive, and it is a 
stronger egalitarian principle than the difference principle. 

There is an even more stringent egalitarian principle short of strict 
egalitarianism, supported by considerations similar to those which 
lead to the rejection of a simple cost-benefit principle for moral 
contexts . 32 This would give us Egalitarian General Principle 2: An 
unequal system U is justified only if a) its benefits outweigh its 
costs, and b) there is no other unequal system S, with lesser in- 
equality, such that the extra benefits of U over S do not outweigh 
the extra costs of U over S. As before, treating X B — X w as the 
costs of the inequality in a system X, we get the following First 
Specification of Egalitarian General Principle 2: An unequal sys- 
tem U is justified only if: 

a) U w E w 3 > U B U w and 

b) There is no system S such that S B — S w < U B — U w , and 

Uw s w ^ (U B U w ) — (S B — Sw)- 

(Notice b) comes to: There is no system S with less inequality 
than U, such that the extra benefits of U over S are less than or 
equal to its extra costs.) 

In increasing order of egalitarian stringency we have: the dif- 
ference principle, the first specification of General Egalitarian 
Principle 1, the first specification of General Egalitarian Principle 
2, and the principle of strict equality (choose E). Surely an egali- 
tarian would find the middle two more attractive than the dif- 
ference principle. (Such an egalitarian might want to consider 
what changes in the structure of the Original Position or the na- 
ture of the persons in it, would lead to one of these egalitarian 
principles being chosen.) I do not myself, of course, suggest that 
these egalitarian principles are correct. But their consideration 
helps illuminate exactly how egalitarian the difference principle is, 
and make it implausible to claim it stands as the most egalitarian 
plausible principle short of strict equality. (However, perhaps 



2 12 


Beyond the Minimal State? 

Scanlon means that any more stringent egalitarian principle would 
have to ascribe a cost to inequality, and no theoretical justification 
has been given which would enable one to ascribe a precise cost.) 

There is one way we should mention whereby even more egali- 
tarian principles might be gotten from Rawls’ original position. 
Rawls imagines rational self-interested persons behind a veil of ig- 
norance choosing principles to govern their institutions. He fur- 
ther imagines, in the third part of his book, that when raised in a 
society which embodies these principles, people thereby develop a 
sense of justice and a particular psychology (attitudes towards 
others, etc.). Call this Stage I of the argument. Stage II of the 
argument would involve taking these people who are the result of 
Stage I and the operation of a society in accordance with Stage I 
principles, and placing them in an original position. The Stage II 
original position contains individuals with the psychology and 
sense of justice which is the product of Stage I, rather than indi- 
viduals who are (merely) rational and self-interested. Now these 
persons choose principles to govern the society they are to live in. 
Will the principles they choose in Stage II be the same principles 
chosen by the others in Stage I? If not, imagine people raised in a 
society embodying the Stage II principles, determine what psy- 
chology they would develop, and place these individuals, who are 
the products of Stage II, in a Stage III original position, and con- 
tinue as before to iterate the process. We shall say that the iterated 
original position yields particular principles P if i) there is a Stage 
n original position wherein P is chosen, and P is also chosen in the 
Stage n + i original position, or 2) if new principles are chosen in 
each new stage of the original position, these principles converge 
to P at the limit. Otherwise, no particular principles are yielded 
by the iterated original position, e.g., succeeding stages of the 
original position oscillate between two sets of principles. 

Are Rawls’ two principles in fact yielded by the iterated original 
position, that is, at Stage II do the people with the psychology 
Rawls describes as resulting from the operation of his two princi- 
ples of justice, themselves choose those very principles when they 
are placed in an original position? If so, this would strengthen 
Rawls’ result. If not, we face the question of whether any principles 
are yielded by the original position; at what stage they are yielded 
(or are they yielded at the limit); and what precisely those princi- 



Distributive Justice 


213 


pies are. This would seem to be an interesting area of investigation 
for those souls who choose to work, despite my arguments, within 
the Rawlsian framework. 


NATURAL ASSETS AND ARBITRARINESS 

Rawls comes closest to considering the entitlement system in his 
discussion of what he terms the system of natural liberty: 

The system of natural liberty selects an efficient distribution roughly as 
follows. Let us suppose that we know from economic theory that under 
the standard assumptions defining a competitive market economy, in- 
come and wealth will be distributed in an efficient way, and that the 
particular efficient distribution which results in any period of time is de- 
termined by the initial distribution of assets, that is, by the initial dis- 
tribution of income and wealth, and of natural talents and abilities. 
With each initial distribution, a definite efficient outcome is arrived at. 
Thus it turns out that if we are to accept the outcome as just, and not 
merely as efficient, we must accept the basis upon which over time the 
initial distribution of assets is determined. 

In the system of natural liberty the initial distribution is regulated 
by the arrangements implicit in the conception of careers open to tal- 
ents. These arrangements presuppose a background of equal liberty (as 
specified by the first principle) and a free market economy. They require 
a formal equality of opportunity in that all have at least the same legal 
rights of access to all advantaged social positions. But since there is no 
effort to preserve an equality or similarity, of social conditions, except 
insofar as this is necessary to preserve the requisite background institu- 
tions, the initial distribution of assets for any period of time is strongly 
influenced by natural and social contingencies. The existing distribution 
of income and wealth, say, is the cumulative effect of prior distributions 
of natural assets — that is, natural talents and abilities — as these have 
been developed or left unrealized, and their use favored or disfavored 
over time by social circumstances and such chance contingencies as ac- 
cident and good fortune. Intuitively, the most obvious injustice of the 
system of natural liberty is that it permits distributive shares to be 
improperly influenced by these factors so arbitrary from a moral point of 
view . 33 

Here we have Rawls’ reason for rejecting a system of natural lib- 
erty: it “permits” distributive shares to be improperly influenced 
by factors that are so arbitrary from a moral point of view. These 



2I 4 


Beyond the Minimal State? 

factors are: “prior distribution ... of natural talents and abilities 
as these have been developed over time by social circumstances and 
such chance contingencies as accident and good fortune.” Notice 
that there is no mention at all of how persons have chosen to de- 
velop their own natural assets. Why is that simply left out? Per- 
haps because such choices also are viewed as being the products of 
factors outside the person’s control, and hence as “arbitrary from a 
moral point of view.” “The assertion that a man deserves the supe- 
rior character that enables him to make the effort to cultivate his 
abilities is equally problematic; for his character depends in large 
part upon fortunate family and social circumstances for which he 
can claim no credit.” 34 (What view is presupposed here of charac- 
ter and its relation to action?) “The initial endowment of natural 
assets and the contingencies of their growth and nurture in early 
life are arbitrary from a moral point of view . . . the effort a per- 
son is willing to make is influenced by his natural abilities and 
skills and the alternatives open to him. The better endowed are 
more likely, other things equal, to strive conscien- 
tiously. . . .” 35 This line of argument can succeed in blocking 
the introduction of a person’s autonomous choices and actions (and 
their results) only by attributing everything noteworthy about the 
person completely to certain sorts of “external” factors. So deni- 
grating a person’s autonomy and prime responsibility for his ac- 
tions is a risky line to take for a theory that otherwise wishes to 
buttress the dignity and self-respect of autonomous beings; espe- 
cially for a theory that founds so much (including a theory of the 
good) upon persons’ choices. One doubts that the unexalted pic- 
ture of human beings Rawls’ theory presupposes and rests upon 
can be made to fit together with the view of human dignity it is 
designed to lead to and embody. 

Before we investigate Rawls’ reasons for rejecting the system of 
natural liberty, we should note the situation of those in the origi- 
nal position. The system of natural liberty is one interpretation of a 
principle that (according to Rawls) they do accept: social and eco- 
nomic inequalities are to be arranged so that they both are reason- 
ably expected to be to everyone’s advantage, and are attached to 
positions and offices open to all. It is left unclear whether the per- 
sons in the original position explicitly consider and choose among 
all the various interpretations of this principle, though this would 



Distributive Justice 


215 


seem to be the most reasonable construal. (Rawls’ chart on page 
124 listing the conceptions of justice considered in the original 
position does not include the system of natural liberty.) Certainly 
they explicitly consider one interpretation, the difference princi- 
ple. Rawls does not state why persons in the original position who 
considered the system of natural liberty would reject it. Their 
reason cannot be that it makes the resulting distribution depend 
upon a morally arbitrary distribution of natural assets. What we 
must suppose, as we have seen before, is that the self-interested 
calculation of persons in the original position does not (and can- 
not) lead them to adopt the entitlement principle. We, however, 
and Rawls, base our evaluations on different considerations. 

Rawls has explicitly designed the original position and its choice 
situation so as to embody and realize his negative reflective evalu- 
ation of allowing shares in holdings to be affected by natural as- 
sets: “Once we decide to look for a conception of justice that 
nullifies the accidents of natural endowment and the contingencies 
of social circumstance. . . . ” 36 (Rawls makes many scattered ref- 
erences to this theme of nullifying the accidents of natural endow- 
ment and the contingencies of social circumstance.) This quest 
crucially shapes Rawls’ theory, and it underlies his delineation of 
the original position. It is not that persons who did deserve their 
natural endowments would choose differently if placed in Rawls’ 
original position, but rather that, presumably, for such persons, 
Rawls would not hold that the principles of justice to govern their 
mutual relations were fixed by what they would choose in the orig- 
inal position. It is useful to remember how much of Rawls’ con- 
struction rests upon this foundation. For example, Rawls argues 
that certain egalitarian demands are not motivated by envy but 
rather, because they are in accord with his two principles of jus- 
tice, by resentment of injustice. 37 This argument can be undercut, 
as Rawls realizes, 38 if the very considerations which underlie the 
original position (yielding Rawls’ two principles of justice) them- 
selves embody or are based upon envy. So in addition to wanting 
to understand Rawls’ rejection of alternative conceptions and to 
assess how powerful a criticism he makes of the entitlement con- 
ception, reasons internal to his theory provide motivation to ex- 
plore the basis of the requirement that a conception of justice be 
geared to nullify differences in social circumstances and in natural 



Beyond the Minimal State? 


216 

assets (and any differences in social circumstances they result in). 

Why shouldn’t holdings partially depend upon natural endow- 
ments? (They will also depend on how these are developed and on 
the uses to which they are put.) Rawls’ reply is that these natural 
endowments and assets, being undeserved, are "arbitrary from a 
moral point of view.” There are two ways to understand the rele- 
vance of this reply: It might be part of an argument to establish 
that the distributive effects of natural differences ought to be 
nullified, which I shall call the positive argument; or it might be 
part of an argument to rebut a possible counterargument holding 
that the distributive effects of natural differences oughtn’t to be 
nullified, which I shall call the negative argument. Whereas the 
positive argument attempts to establish that the distributive ef- 
fects of natural differences ought to be nullified, the negative one, 
by merely rebutting one argument that the differences oughtn’t to 
be nullified, leaves open the possibility that (for other reasons) the 
differences oughtn’t to be nullified. (The negative argument also 
leaves it possibly a matter of moral indifference whether the dis- 
tributive effects of natural differences are to be nullified; note the 
difference between saying that something ought to be the case and 
saying that it’s not that it oughtn’t to be the case.) 


THE POSITIVE ARGUMENT 

We shall begin with the positive argument. How might the point 
that differences in natural endowments are arbitrary from a moral 
point of view function in an argument meant to establish that dif- 
ferences in holdings stemming from differences in natural assets 
ought to be nullified? We shall consider four possible arguments; 
the first, the following argument A: 

1. Any person should morally deserve the holdings he has; it shouldn’t 
be that persons have holdings they don’t deserve. 

2. People do not morally deserve their natural assets. 

3. If a person’s X partially determines his Y, and his X is undeserved 
then so is his Y. 


Therefore, 



Distributive Justice 


217 


4. People’s holdings shouldn’t be partially determined by their natural 
assets. 

This argument will serve as a surrogate for other similar, more 
complicated ones . 39 But Rawls explicitly and emphatically rejects 
distribution according to moral desert. 

There is a tendency for common sense to suppose that income and 
wealth, and the good things in life generally, should be distributed ac- 
cording to moral desert. Justice is happiness according to virtue. While 
it is recognized that this ideal can never be fully carried out, it is the ap- 
propriate conception [according to common sense} of distributive jus- 
tice, at least as a prima facie principle, and society should try to realize 
it as circumstances permit. Now justice as fairness rejects this concep- 
tion. Such a principle would not be chosen in the original position. 40 

Rawls could not, therefore, accept any premiss like the first prem- 
iss in argument A, and so no variant of this argument underlies 
his rejection of differences in distributive shares stemming from 
undeserved differences in natural assets. Not only does Rawls re- 
ject premiss 1, his theory is not coextensive with it. He favors giv- 
ing incentives to persons if this most improves the lot of the least 
well off, and it often will be because of their natural assets that 
these persons will receive incentives and have larger shares. We 
noted earlier that the entitlement conception of justice in hold- 
ings, not being a patterned conception of justice, does not accept 
distribution in accordance with moral desert either. Any person 
may give to anyone else any holding he is entitled to, indepen- 
dently of whether the recipient morally deserves to be the recipi- 
ent. To each according to the legitimate entitlements that legiti- 
mately have been transferred to him, is not a patterned principle. 

If argument A and its first premiss are rejected, it is not obvi- 
ous how to construct the positive argument. Consider next argu- 
ment B: 

1 . Holdings ought to be distributed according to some pattern that is 
not arbitrary from a moral point of view. 

2. That persons have different natural assets is arbitrary from a moral 
point of view. 

Therefore, 

3. Holdings ought not to be distributed according to natural assets. 



2 I 8 


Beyond the Minimal State? 


But differences in natural assets might be correlated, with other 
differences that are not arbitrary from a moral point of view and 
that are clearly of some possible moral relevance to distributional 
questions. For example, Hayek argued that under capitalism dis- 
tribution generally is in accordance with perceived service to oth- 
ers. Since differences in natural assets will produce differences in 
ability to serve others, there will be some correlation of differences 
in distribution with differences in natural assets. The principle of 
the system is not distribution in accordance with natural assets; but 
differences in natural assets will lead to differences in holdings 
under a system whose principle is distribution according to per- 
ceived service to others. If conclusion 3 above is to be interpreted 
in extension so as to exclude this, it should be made explicit. But 
to add the premiss that any pattern that has some roughly coex- 
tensive description that is arbitrary from a moral point of view is 
itself arbitrary from a moral point of view would be far too strong, 
because it would yield the result that every pattern is arbitrary from 
a moral point of view. Perhaps the crucial thing to be avoided is 
not mere coextensiveness, but rather some morally arbitrary fea- 
ture’s giving rise to differences in distributive shares. Thus consider 
argument C: 

1. Holdings ought to be distributed according to some pattern that is 
not arbitrary from a moral point of view. 

2. That persons have different natural assets is arbitrary from a moral 
point of view. 

3. If part of the explanation of why a pattern contains differences in 
holdings is that other differences in persons give rise to these dif- 
ferences in holdings, and if these other differences are arbitrary from 
a moral point of view, then the pattern also is arbitrary from a 
moral point of view. 

Therefore, 

4. Differences in natural assets should not give rise to differences in 
holdings among persons. 

Premiss 3 of this argument holds that any moral arbitrariness that 
underlies a pattern infects the pattern and makes it too morally ar- 
bitrary. But any pattern will have some morally arbitrary facts as 
part of the explanation of how it arises, including the pattern 



Distributive Justice 


219 


proposed by Rawls. The difference principle operates to give some 
persons larger distributive shares than others; which persons re- 
ceive these larger shares will depend, at least partially, on dif- 
ferences between these persons and others, differences that are ar- 
bitrary from a moral point of view, for some persons with special 
natural assets will be offered larger shares as an incentive to use 
these assets in certain ways. Perhaps some premiss similar to 3 can 
be formulated so as to exclude what Rawls wishes to exclude while 
not excluding his own view. Still, the resulting argument would 
assume that the set of holdings should realize some pattern. 

Why should the set of holdings be patterned? Patterning is not 
intrinsic to a theory of justice, as we have seen in our presentation 
of the entitlement theory: a theory that focuses upon the underly- 
ing principles that generate sets of holdings rather than upon the 
pattern a set of holdings realizes. If it be denied that the theory of 
these underlying principles is a separate theory of distributive jus- 
tice, rather than merely a collection of diverse considerations from 
other areas, then the question becomes one of whether there is any 
separate subject of distributive justice which requires a separate 
theory. 

On the manna-from-heaven model given earlier, there might be 
a more compelling reason to search for a pattern. But since things 
come into being already held (or with agreements already made 
about how they are to be held), there is no need to search for some 
pattern for unheld holdings to fit; and since the process whereby 
holdings actually come into being or are shaped, itself needn’t re- 
alize any particular pattern, there is no reason to expect any pat- 
tern to result. The situation is not an appropriate one for wonder- 
ing, “After all, what is to become of these things; what are we to 
do with them.” In the non-manna-from-heaven world in which 
things have to be made or produced or transformed by people, 
there is no separate process of distribution for a theory of distribu- 
tion to be a theory of. The reader will recall our earlier argument 
that (roughly) any set of holdings realizing a particular pattern 
may be transformed by the voluntary exchanges, gifts, and so 
forth, of the persons having the holdings under the pattern into 
another set of holdings that does not fit the pattern. The view that 
holdings must be patterned perhaps will seem less plausible when 
it is seen to have the consequence that people may not choose to 



220 Beyond the Minimal State? 

do acts that upset the patterning, even with things they legiti- 
mately hold. 

There is another route to a patterned conception of justice that, 
perhaps, should be mentioned. Suppose that each morally legiti- 
mate fact has a “unified” explanation that shows it is morally le- 
gitimate, and that conjunctions fall into the domain of facts to be 
explained as morally legitimate. If p, and q are each morally legiti- 
mate facts, with their respective explanations as morally legitimate 
being P, and Q, then if p A q is also to be explained as morally le- 
gitimate, and if P AQ does not constitute a “unified” explanation 
(but is a mere conjunction of different explanations), then some 
further explanation will be needed. Applying this to holdings, 
suppose there are separate entitlement explanations showing the 
legitimacy of my having my holdings, and of your having yours, 
and the following question is asked: “Why is it legitimate that I 
hold what I do and you hold what you do; why is that joint fact 
and all the relations contained within it legitimate?” If the conjunc- 
tion of the two separate explanations will not be held to explain in 
a unified manner the legitimacy of the joint fact (whose legitimacy 
is not viewed as being constituted by the legitimacy of its constit- 
uent parts), then some patterned principles of distribution would 
appear to be necessary to show its legitimacy, and to legitimate 
any nonunit set of holdings. 

With scientific explanation of particular facts, the usual practice 
is to consider some conjunctions of explained facts as not requiring 
separate explanation, but as being explained by the conjunctions of 
the explanations of the conjuncts. (If E 1 explains ei and E 2 ex- 
plains ei then E1AE2 explains ei Ae2.) If we required that any two 
conjuncts and any w- place conjunction had to be explained in some 
unified fashion, and not merely by the conjunction of separate and 
disparate explanations, then we would be driven to reject most of 
the usual explanations and to search for an underlying pattern to 
explain what appear to be separate facts. (Scientists, of course, 
often do offer a unified explanation of apparently separate facts.) It 
would be well worth exploring the interesting consequences of 
refusing to treat, even in the first instance, any two facts as legiti- 
mately separable, as having separate explanations whose conjunc- 
tion is all there is to the explanation of them. What would our 
theories of the world look like if we required unified explanations 



Distributive Justice 


221 


of all conjunctions? Perhaps an extrapolation of how the world 
looks to paranoid persons. Or, to put it undisparagingly, the way 
it appears to persons having certain sorts of dope experiences. (For 
example, the way it sometimes appears to me after smoking mari- 
juana.) Such a vision of the world differs fundamentally from the 
way we normally look at it; it is surprising at first that a simple 
condition on the adequacy of explanations of conjunctions leads to 
it, until we realize that such a condition of adequacy must lead to 
a view of the world as deeply and wholly patterned. 

A similar condition of adequacy on explanations of the moral le- 
gitimacy of conjunctions of separate morally legitimate facts would 
lead to a view that requires sets of holdings to exhibit an overall 
patterning. It seems unlikely that there will be compelling argu- 
ments for imposing such a principle of adequacy. Some may find 
such a unified vision plausible for only one realm; for example, in 
the moral realm concerning sets of holdings, but not in the realm 
of ordinary nonmoral explanation, or vice versa. For the case of 
explaining nonmoral facts, the challenge would be to produce such 
a unified theory. Were one produced that introduced novel consid- 
erations and explained no new facts (other than conjunctions of old 
ones) the decision as to its acceptability might be a difficult one 
and would depend largely on how explanatorily satisfying was the 
new way we saw the old facts. In the case of moral explanations 
and accounts which show the moral legitimacy of various facts, the 
situation is somewhat different. First, there is even less reason (I 
believe) to suppose a unified explanation appropriate and neces- 
sary. There is less need for a greater degree of explanatory unity 
than that provided when the same underlying principles for gen- 
erating holdings appear in different explanations. (Rawls’ theory, 
which contains elements of what he calls pure procedural justice, 
does not satisfy a strong condition of adequacy for explaining con- 
junctions and entails that such a condition cannot be satisfied.) 
Secondly, there is more danger than in the scientific case that the 
demand for a unified explanation will shape the “moral facts” to be 
explained. (“It can’t be that both of those are facts for there’s no 
unified patterned explanation that would yield them both.”) 
Hence success in finding a unified explanation of such seriously 
primed facts will leave it unclear how well supported the explana- 
tory theory is. 



222 


Beyond the Minimal State? 


I turn now to our final positive argument which purports to 
derive the conclusion that distributive shares shouldn’t depend 
upon natural assets from the statement that the distribution of 
natural assets is morally arbitrary. This argument focuses on the 
notion of equality. Since a large part of Rawls’ argument serves to 
justify or show acceptable a particular deviation from equal shares 
(some may have more if this serves to improve the position of 
those worst off), perhaps a reconstruction of his underlying argu- 
ment that places equality at its center will be illuminating. Dif- 
ferences between persons (the argument runs) are arbitrary from a 
moral point of view if there is no moral argument for the conclu- 
sion that there ought to be the differences. Not all such differences 
will be morally objectionable. That there is no such moral argu- 
ment will seem important only in the case of those differences we 
believe oughtn’t to obtain unless there is a moral reason es- 
tablishing that they ought to obtain. There is, so to speak, a 
presumption against certain differences that can be overridden (can 
it merely be neutralized?) by moral reasons; in the absence of any 
such moral reasons of sufficient weight, there ought to be equality. 
Thus we have argument D: 

1. Holdings ought to be equal, unless there is a (weighty) moral 
reason why they ought to be unequal. 

2 . People do not deserve the ways in which they differ from other per- 
sons in natural assets; there is no moral reason why people ought to 
differ in natural assets. 

3. If there is no moral reason why people differ in certain traits, then 
their actually differing in these traits does not provide, and cannot 
give rise to, a moral reason why they should differ in other traits 
(for example, in holdings). 

Therefore, 

4. People’s differing in natural assets is not a reason why holdings 
ought to be unequal. 

5. People’s holdings ought to be equal unless there is some other 
moral reason (such as, for example, raising the position of those 
worst off) why their holdings ought to be unequal. 

Statements similar to the third premiss will occupy us shortly. 
Here let us focus on the first premiss, the equality premiss. Why 
ought people’s holdings to be equal, in the absence of special 
moral reason to deviate from equality? (Why think there ought to 



Distributive Justice 


223 


be any particular pattern in holdings?) Why is equality the rest (or 
rectilinear motion) position of the system, deviation from which 
may be caused only by moral forces? Many “arguments” for equal- 
ity merely assert that differences between persons are arbitrary and 
must be justified. Often writers state a presumption in favor of 
equality in a form such as the following: “Differences in treatment 
of persons need to be justified.” 41 The most favored situation for 
this sort of assumption is one in which there is one person (or 
group) treating everyone, a person (or group) having no right or 
entitlement to bestow the particular treatment as they wish or 
even whim. But if I go to one movie theater rather than to another 
adjacent to it, need I justify my different treatment of the two the- 
ater owners? Isn’t it enough that I felt like going to one of them? 
That differences in treatment need to be justified dm fit contem- 
porary governments. Here there is a centralized process treating all, 
with no entitlement to bestow treatment according to whim. The 
major portion of distribution in a free society does not, however, 
come through the actions of the government, nor does failure to 
overturn the results of the localized individual exchanges consti- 
tute “state action.” When there is no one doing the treating, and 
all are entitled to bestow their holdings as they wish, it is not 
clear why the maxim that differences in treatment must be jus- 
tified should be thought to have extensive application. Why must 
differences between persons be justified? Why think that we must 
change, or remedy, or compensate for any inequality which can be 
changed, remedied, or compensated for? Perhaps here is where 
social cooperation enters in: though there is no presumption of 
equality (in, say, primary goods, or things people care about) 
among all persons, perhaps there is one among persons cooperating 
together. But it is difficult to see an argument for this; surely not 
all persons who cooperate together explicitly agree to this pre- 
sumption as one of the terms of their mutual cooperation. And its 
acceptance would provide an unfortunate incentive for well-off per- 
sons to refuse to cooperate with, or to allow any of their number to 
cooperate with, some distant people who are less well off than any 
among them. For entering into such social cooperation, beneficial 
to those less well off, would seriously worsen the position of the 
well-off group by creating relations of presumptive equality be- 
tween themselves and the worse-off group. In the next chapter I 



224 


Beyond the Minimal State? 


shall consider the major recent argument for equality, one which 
turns out to be unsuccessful. Here we need only note that the con- 
nection argument D forges between not deserving natural assets 
and some conclusion about distributive shares assumes equality as a 
norm (that can be deviated from with, and only with, moral 
reason); and hence argument D itself cannot be used to establish 
any such conclusion about equality. 


THE NEGATIVE ARGUMENT 

Unsuccessful in our quest for a convincing positive argument to 
connect the claim that people don’t deserve their natural assets 
with the conclusion that differences in holdings ought not to be 
based upon differences in natural assets, we now turn to what we 
called the negative argument: the use of the claim that people 
don’t deserve their natural assets to rebut a possible coun- 
terargument to Rawls’ view. (If the equality argument D were ac- 
ceptable, the negative task of rebutting possible counterconsidera- 
tions would form part of the positive task of showing that a 
presumption for equality holds unoverridden in a particular case.) 
Consider the following possible counterargument E to Rawls: 

1. People deserve their natural assets. 

2. If people deserve X, they deserve any Y that flows from X. 

3. People’s holdings flow from their natural assets. 

Therefore, 

4. People deserve their holdings. 

5. If people deserve something, then they ought to have it (and this 
overrides any presumption of equality there may be about that 
thing). 

Rawls would rebut this counterargument to his position by deny- 
ing its first premiss. And so we see some connection between the 
claim that the distribution of natural assets is arbitrary and the 
statement that distributive shares should not depend upon natural 
assets. However, no great weight can be placed upon this connec- 
tion. For there are other counterarguments, in a similar vein; for 
example the argument F that begins: 



Distributive Justice 


225 


1 . If people have X, and their having X (whether or not they deserve 
to have it) does not violate anyone else’s (Lockean) right or en- 
titlement to X, and Y flows from (arises out of, and so on) X by a 
process that does not itself violate anyone’s (Lockean) rights or en- 
titlements,* then the person is entitled to Y. 

2. People’s having the natural assets they do does not violate anyone 
else’s (Lockean) entitlements or rights. 

and goes on to argue that people are entitled to what they make, 
to the products of their labor, to what others give them or 
exchange. It is not true, for example, that a person earns Y (a 
right to keep a painting he’s made, praise for writing A Theory of 
Justice, and so on) only if he’s earned (or otherwise deserves) what- 
ever he used (including natural assets) in the process of earning Y. 
Some of the things he uses he just may have, not illegitimately. It 
needn’t be that the foundations underlying desert are themselves 
deserved, all the way down. 

At the very least, we can parallel these statements about desert 
with ones about entitlements. And if, correctly, we describe peo- 
ple as entitled to their natural assets even if it’s not the case that 
they can be said to deserve them, then the argument parallel to E 
above, with “are entitled to” replacing “deserve” throughout, will 
go through. This gives us the acceptable argument G: 

1. People are entitled to their natural assets. 

2. If people are entitled to something, they are entitled to whatever 
flows from it (via specified types of processes). 

3. People’s holdings flow from their natural assets. 

Therefore, 

4. People are entitled to their holdings. 

5. If people are entitled to something, then they ought to have it (and 


* A process, we might strengthen the antecedent by adding, of the sort that 
would create an entitlement to Y if the person were entitled to X. I use 
“Lockean” rights and entitlements to refer to those (discussed in Part I) against 
force, fraud, and so on, which are to be recognized in the minimal state. Since I 
believe these are the only rights and entitlements people possess (apart from 
those they specially acquire), I needn’t have included the specification to Lock- 
ean rights. One who believes some have a right to the fruits of others’ labor will 
deny the truth of the first premiss as stated. If the Lockean specification were 
not included, he might grant the truth of 1 , while denying that of 2 or of later 
steps. 



226 


Beyond the Minimal State? 

this overrides any presumption of equality there may be about hold- 
ings). 

Whether or not people’s natural assets are arbitrary from a moral 
point of view, they are entitled to them, and to what flows from 
them.* 

A recognition of people’s entitlements to their natural assets 
(the first premiss of argument G) might be necessary to avoid the 
stringent application of the difference principle which would lead, 
we already have seen, to even stronger property rights in other 
persons than redistributive theories usually yield. Rawls feels that 
he avoids this 42 because people in his original position rank the 
principle of liberty as lexicographically prior to the difference prin- 
ciple, applied not only to economic well-being but to health, 
length of life, and so on. (However, see note 29 above.) 

We have found no cogent argument to (help) establish that dif- 
ferences in holding arising from differences in natural assets should 
be eliminated or minimized. Can the theme that people’s natural 
assets are arbitrary from a moral point of view be used differently, 
for example, to justify a certain shaping of the original position? 
Clearly if the shaping is designed to nullify differences in holdings 
due to differences in natural assets, we need an argument for this 
goal, and we are back to our unsuccessful quest for the route to the 
conclusion that such differences in holdings ought to be nullified. 
Instead, the shaping might take place by excluding the partici- 
pants in the original position from knowing of their own natural 
endowments. In this way the fact that natural endowments are ar- 
bitrary from a moral point of view would help to impose and to 
justify the veil of ignorance. But how does it do this; why should 
knowledge of natural endowments be excluded from the original 

* If nothing of moral significance could flow from what was arbitrary, then 
no particular person’s existence could be of moral significance, since which of 
the many sperm cells succeeds in fertilizing the egg cell is (so far as we know) 
arbitrary from a moral point of view. This suggests another, more vague, 
remark directed to the spirit of Rawls’ position rather than to its letter. Each 
existing person is the product of a process wherein the one sperm cell which 
succeeds is no more deserving than the millions that fail. Should we wish that 
process had been “fairer” as judged by Rawls’ standards, that all “inequities” in 
it had been rectified? We should be apprehensive about any principle that 
would condemn morally the very sort of process that brought us to be, a princi- 
ple that therefore would undercut the legitimacy of our very existing. 



Distributive Justice 


227 


position? Presumably the underlying principle would be that if 
any particular features are arbitrary from a moral point of view, 
then persons in the original position should not know they possess 
them. But this would exclude their knowing anything about them- 
selves, for each of their features (including rationality, the ability 
to make choices, having a life span of more than three days, hav- 
ing a memory, being able to communicate with other organisms 
like themselves) will be based upon the fact that the sperm and 
ovum which produced them contained particular genetic material. 
The physical fact that those particular gametes contained particu- 
lar organized chemicals (the genes for people rather than for 
muskrats or trees) is arbitrary from a moral point of view; it is, from 
a moral point of view, an accident. Yet the persons in the original 
position are to know some of their attributes. 

Perhaps we are too quick when we suggest excluding knowledge 
of rationality, and so forth, merely because these features arise from 
morally arbitrary facts. For these features also have moral signifi- 
cance; that is, moral facts depend upon or arise from them. Here 
we see an ambiguity in saying that a fact is arbitrary from a moral 
point of view. It might mean that there is no moral reason why 
the fact ought to be that way, or it might mean that the fact’s 
being that way is of no moral significance and has no moral conse- 
quences. Rationality, the ability to make choices, and so on, are 
not morally arbitrary in this second sense. But if they escape 
exclusion on this ground, now the problem is that the natural as- 
sets, knowledge of which Rawls wishes to exclude from the origi- 
nal position, are not morally arbitrary in this sense either. At any 
rate, the entitlement theory’s claim that moral entitlements may 
arise from or be partially based upon such facts is what is now at 
issue. Thus, in the absence of an argument to the effect that dif- 
ferences in holdings due to differences in natural assets ought to be 
nullified, it is not clear how anything about the original position 
can be based upon the (ambiguous) claim that differences in natu- 
ral assets are arbitrary from a moral point of view. 



228 


Beyond the Minimal State ? 


COLLECTIVE ASSETS 

Rawls’ view seems to be that everyone has some entitlement or 
claim on the totality of natural assets (viewed as a pool), with no 
one having differential claims. The distribution of natural abilities 
is viewed as a “collective asset.” 43 

We see then that the difference principle represents, in effect, an agree- 
ment to regard the distribution of natural talents as a common asset and 
to share in the benefits of this distribution whatever it turns out to be. 
Those who have been favored by nature, whoever they are, may gain 
from their good fortune only on terms that improve the situation of 
those who have lost out. . . . No one deserves his greater natural capac- 
ity nor merits a more favorable starting place in society. But it does not 
follow that one should eliminate these distinctions. There is another way 
to deal with them. The basic structure can be arranged so that these con- 
tingencies work for the good of the least fortunate . 44 

People will differ in how they view regarding natural talents as a 
common asset. Some will complain, echoing Rawls against utili- 
tarianism , 45 that this “does not take seriously the distinction be- 
tween persons”; and they will wonder whether any reconstruction 
of Kant that treats people’s abilities and talents as resources for 
others can be adequate. “The two principles of justice . . . rule 
out even the tendency to regard men as means to one another’s 
welfare.” 46 Only if one presses very hard on the distinction be- 
tween men and their talents, assets, abilities, and special traits. 
Whether any coherent conception of a person remains when the 
distinction is so pressed is an open question. Why we, thick with 
particular traits, should be cheered that (only) the thus purified 
men within us are not regarded as means is also unclear. 

People’s talents and abilities are an asset to a free community; 
others in the community benefit from their presence and are better 
off because they are there rather than elsewhere or nowhere. (Oth- 
erwise they wouldn’t choose to deal with them.) Life, over time, is 
not a constant-sum game, wherein if greater ability or effort leads 
to some getting more, that means that others must lose. In a free 
society, people’s talents do benefit others, and not only them- 
selves. Is it the extraction of even more benefit to others that is 



Distributive Justice 


229 


supposed to justify treating people’s natural assets as a collective 
resource? What justifies this extraction? 

No one deserves his greater natural capacity nor merits a more favorable 
starting place in society. But it does not follow that one should elimi- 
nate these distinctions. There is another way to deal with them. The 
basic structure can be arranged so that these contingencies work for the 
good of the least fortunate . 47 

And if there weren’t “another way to deal with them”? Would it 
then follow' that one should eliminate these distinctions? What ex- 
actly would be contemplated in the case of natural assets? If peo- 
ple’s assets and talents couldn’t be harnessed to serve others, would 
something be done to remove these exceptional assets and talents, 
or to forbid them from being exercised for the person’s own benefit 
or that of someone else he chose, even though this limitation 
wouldn’t improve the absolute position of those somehow unable 
to harness the talents and abilities of others for their own benefit? 
Is it so implausible to claim that envy underlies this conception of 
justice, forming part of its root notion?* 


* Will the lexicographic priority that Rawls claims for liberty in the original 
position prevent the difference principle from requiring a head tax on assets and 
abilities? The legitimacy of a head tax is suggested by Rawls’ speaking of “collec- 
tive assets” and “common assets.” Those underutilizing their assets and abilities 
ate misusing a public asset. (Squandering public property?) Rawls may intend 
no such strong inferences from his terminology, but we need to hear more about 
why those in the original position wouldn’t accept the strong interpretation. 
The notion of liberty needs elaboration which is to exclude a head tax and yet 
allow the other taxation schemes. Assets and abilities can be harnessed without 
a head tax; and “harnessing” is an appropriate term — as it would be for a horse 
harnessed to a wagon which doesn’t have to move ever, but if it does, it must 
draw the wagon along. 

With regard to envy, the difference principle, applied to the choice between 
either A having ten and B having five ot A having eight and B having five, 
would favor the latter. Thus, despite Rawls’ view (pp. 79—80), the difference 
principle is inefficient in that it sometimes will favor a status quo against a 
Pareto-better but more unequal distribution. The inefficiency could be removed 
by shifting from the simple difference principle to a staggered difference princi- 
ple, which recommends the maximization of the position of the least well-off 
group, and subject to that constraint the maximization of the position of the next 
least well-off group, and this point also is made by A. K. Sen ( Collective Choice 
and Social Welfare, p. 138, note) and is acknowledged by Rawls (p. 83). But 
such a staggered principle does not embody a presumption in favor of equality 



230 


Beyond the Minimal State? 


We have used our entitlement conception of justice in holdings 
to probe Rawls’ theory, sharpening our understanding of what the 
entitlement conception involves by bringing it to bear upon an al- 
ternative conception of distributive justice, one that is deep and 
elegant. Also, I believe, we have probed deep-lying inadequacies 
in Rawls’ theory. I am mindful of Rawls’ reiterated point that a 
theory cannot be evaluated by focusing upon a single feature or 
part of it; instead the whole theory must be assessed (the reader 
will not know how whole a theory can be until he has read all of 
Rawls’ book), and a perfect theory is not to be expected. However 
we have examined an important part of Rawls’ theory, and its 
crucial underlying assumptions. I am as well aware as anyone of 
how sketchy my discussion of the entitlement conception of justice 
in holdings has been. But I no more believe we need to have 
formulated a complete alternative theory in order to reject Rawls’ 
undeniably great advance over utilitarianism, than Rawls needed a 
complete alternative theory before he could reject utilitarianism. 
What more does one need or can one have, in order to begin 
progressing toward a better theory, than a sketch of a plausible al- 
ternative view, which from its very different perspective highlights 
the inadequacies of the best existing well-worked-out theory? 
Here, as in so many things, we learn from Rawls. 

We began this chapter’s investigation of distributive justice in 
order to consider the claim that a state more extensive than the 
minimal state could be justified on the grounds that it was neces- 
sary, or the most appropriate instrument, to achieve distributive 
justice. According to the entitlement conception of justice in 
holdings that we have presented, there is no argument based upon 
the first two principles of distributive justice, the principles of 
acquisition and of transfer, for such a more extensive state. If the 
set of holdings is properly generated, there is no argument for a 
more extensive state based upon distributive justice . 48 (Nor, we 
have claimed, will the Lockean proviso actually provide occasion 
for a more extensive state.) If, however, these principles are vio- 
lated, the principle of rectification comes into play. Perhaps it is 


of the sort used by Rawls. How then could Rawls justify an inequality special to 
the staggered principle to someone in the least well-off group? Perhaps these 
issues underlie the unclarity (see p. 83) as to whether Rawls accepts the 
staggered principle. 




Distributive Justice 231 

best to view some patterned principles of distributive justice as 
rough rules of thumb meant to approximate the general results of 
applying the principle of rectification of injustice. For example, 
lacking much historical information, and assuming (1) that victims 
of injustice generally do worse than they otherwise would and (2) 
that those from the least well-off group in the society have the 
highest probabilities of being the (descendants of) victims of the 
most serious injustice who are owed compensation by those who 
benefited from the injustices (assumed to be those better off, 
though sometimes the perpetrators will be others in the worst-off 
group), then a rough rule of thumb for rectifying injustices might 
seem to be the following: organize society so as to maximize the 
position of whatever group ends up least well-off in the society. 
This particular example may well be implausible, but an impor- 
tant question for each society will be the following: given its par- 
ticular history, what operable rule of thumb best approximates the 
results of a detailed application in that society of the principle of 
rectification? These issues are very complex and are best left to a 
full treatment of the principle of rectification. In the absence of 
such a treatment applied to a particular society, one cannot use the 
analysis and theory presented here to condemn any particular 
scheme of transfer payments, unless it is clear that no consider- 
ations of rectification of injustice could apply to justify it. Al- 
though to introduce socialism as the punishment for our sins 
would be to go too far, past injustices might be so great as to 
make necessary in the short run a more extensive state in order to 
rectify them. 



CHAPTER 

8 

Equality, Envy 
Exploitation, Etc. 

EQUALITY 

T 

.A. HE legitimacy of altering social institutions to achieve 
greater equality of material condition is, though often assumed, 
rarely argued for. Writers note that in a given country the wealth- 
iest n percent of the population holds more than that percentage of 
the wealth, and the poorest n percent holds less; that to get to the 
wealth of the top n percent from the poorest, one must look at the 
bottom p percent (where p is vastly greater than n), and so forth. 
They then proceed immediately to discuss how this might be al- 
tered. On the entitlement conception of justice in holdings, one 
cannot decide whether the state must do something to alter the sit- 
uation merely by looking at a distributional profile or at facts such 
as these. It depends upon how the distribution came about. Some 
processes yielding these results would be legitimate, and the 
various parties would be entitled to their respective holdings. If 
these distributional facts did arise by a legitimate process, then 
they themselves are legitimate. This is, of course, not to say that 
they may not be changed, provided this can be done without 
violating people’s entitlements. Any persons who favor a particular 


232 



Equality, Envy, Exploitation, Etc. 


233 


end-state pattern may choose to transfer some or all of their own 
holdings so as (at least temporarily) more nearly to realize their 
desired pattern. 

The entitlement conception of justice in holdings makes no 
presumption in favor of equality, or any other overall end state or 
patterning. It cannot merely be assumed that equality must be 
built into any theory of justice. There is a surprising dearth of 
arguments for equality capable of coming to grips with the consid- 
erations that underlie a nonglobal and nonpatterned conception of 
justice in holdings . 1 (However, there is no lack of unsupported 
statements of a presumption in favor of equality.) I shall consider 
the argument which has received the most attention from philoso- 
phers in recent years; that offered by Bernard Williams in his in- 
fluential essay “The Idea of Equality.” 2 (No doubt many readers 
will feel that all hangs on some other argument; I would like to 
see that argument precisely set out, in detail.) 

Leaving aside preventive medicine, the proper ground of distribution 
of medical care is ill health: this is a necessary truth. Now in very many 
societies, while ill health may work as a necessary condition of receiving 
treatment, it does not work as a sufficient condition, since such treat- 
ment costs money, and not all who are ill have the money; hence the 
possession of sufficient money becomes in fact an additional necessary 
condition of actually receiving treatment. . . . When we have the situa- 
tion in which, for instance, wealth is a further necessary condition of the 
receipt of medical treatment, we can once more apply the notions of 
equality and inequality: not now in connection with the inequality be- 
tween the well and the ill, but in connection with the inequality be- 
tween the rich ill and the poor ill, since we have straightforwardly 
the situation of those whose needs are the same not receiving the same 
treatment, though the needs are the ground of the treatment. This is an 
irrational state of affairs . . . it is a situation in which reasons are in- 
sufficiently operative; it is a situation insufficiently controlled by 
reasons — and hence by reason itself . 3 

Williams seems to be arguing that if among the different de- 
scriptions applying to an activity, there is one that contains an 
“internal goal” of the activity, then (it is a necessary truth that) 
the only proper grounds for the performance of the activity, or its 
allocation if it is scarce, are connected with the effective achieve- 
ment of the internal goal. If the activity is done upon others, the 
only proper criterion for distributing the activity is their need for 



Beyond the Minimal State? 


234 

it, if any. Thus it is that Williams says (it is a necessary truth 
that) the only proper criterion for the distribution of medical care 
is medical need. Presumably, then, the only proper criterion for 
the distribution of barber ing services is barbering need. But why 
must the internal goal of the activity take precedence over, for ex- 
ample, the person’s particular purpose in performing the activity? 
(We ignore the question of whether one activity can fall under two 
different descriptions involving different internal goals.) If some- 
one becomes a barber because he likes talking to a variety of dif- 
ferent people, and so on, is it unjust of him to allocate his services 
to those he most likes to talk to? Or if he works as a barber in 
order to earn money to pay tuition at school, may he cut the hair 
of only those who pay or tip well? Why may not a barber use ex- 
actly the same criteria in allocating his services as someone else 
whose activities have no internal goal involving others? Need a 
gardener allocate his services to those lawns which need him most? 

In what way does the situation of a doctor differ? Why must his 
activities be allocated via the internal goal of medical care? (If 
there was no “shortage,” could some then be allocated using other 
criteria as well?) It seems clear that he needn’t do that; just because 
he has this skill, why should he bear the costs of the desired alloca- 
tion, why is he less entitled to pursue his own goals, within the 
special circumstances of practicing medicine, than everyone else? 
So it is society that, somehow, is to arrange things so that the doc- 
tor, in pursuing his own goals, allocates according to need; for ex- 
ample, the society pays him to do this. But why must the society 
do this? (Should they do it for barbering as well?) Presumably, 
because medical care is important, people need it very much. This 
is true of food as well, though farming does not have an internal 
goal that refers to other people in the way doctoring does. When 
the layers of Williams’ argument are peeled away, what we arrive 
at is the claim that society (that is, each of us acting together in 
some organized fashion) should make provision for the important 
needs of all of its members. This claim, of course, has been stated 
many times before. Despite appearances, Williams presents no 
argument for it.* Like others, Williams looks only to questions of 


* We have discussed Williams’ position without introducing an essentialist 
view that some activities necessarily involve certain goals. Instead we have tied 



Equality, Envy, Exploitation, Etc. 


235 


allocation. He ignores the question of where the things or actions 
to be allocated and distributed come from. Consequently, he does 
not consider whether they come already tied to people who have 
entitlements over them (surely the case for service activities, which 
are people’s actions), people who therefore may decide for them- 
selves to whom they will give the thing and on what grounds. 


EQUALITY OF OPPORTUNITY 

Equality of opportunity has seemed to many writers to be the 
minimal egalitarian goal, questionable (if at all) only for being too 
weak. (Many writers also have seen how the existence of the family 
prevents fully achieving this goal.) There are two ways to attempt 
to provide such equality: by directly worsening the situations of 
those more favored with opportunity, or by improving the situa- 
tion of those less well-favored. The latter requires the use of 
resources, and so it too involves worsening the situation of some: 
those from whom holdings are taken in order to improve the situa- 
tion of others. But holdings to which these people are entitled 
may not be seized, even to provide equality of opportunity for 
others. In the absence of magic wands, the remaining means to- 
ward equality of opportunity is convincing persons each to choose 
to devote some of their holdings to achieving it. 

The model of a race for a prize is often used in discussions of 
equality of opportunity. A race where some started closer to the 
finish line than others would be unfair, as would a race where 
some were forced to carry heavy weights, or run with pebbles in 
their sneakers. But life is not a race in which we all compete for a 
prize which someone has established; there is no unified race, with 
some person judging swiftness. Instead, there are different persons 


the goals to descriptions of the activities. For essentialist issues only becloud the 
discussion, and they still leave open the question of why the only proper ground 
for allocating the activity is its essentialist goal. The motive for making such an 
essentialist claim would be to avoid someone’s saying: let “schmoctoring” be an 
activity just like doctoring except that its goal is to earn money for the practi- 
tioner; has Williams presented any reason why schmoctoring services should be 
allocated according to need? 



236 Beyond the Minimal State? 

separately giving other persons different things. Those who do the 
giving (each of us, at times) usually do not care about desert or 
about the handicaps labored under; they care simply about what 
they actually get. No centralized process judges people’s use of the 
opportunities they had; that is not what the processes of social co- 
operation and exchange are for. 

There is a reason why some inequality of opportunity might 
seem unfair, rather than merely unfortunate in that some do not 
have every opportunity (which would be true even if no one else 
had greater advantage). Often the person entitled to transfer a 
holding has no special desire to transfer it to a particular person; 
this contrasts with a bequest to a child or a gift to a particular per- 
son. He chooses to transfer to someone who satisfies a certain con- 
dition (for example, who can provide him with a certain good or 
service in exchange, who can do a certain job, who can pay a cer- 
tain salary), and he would be equally willing to transfer to anyone 
else who satisfied that condition. Isn’t it unfair for one party to re- 
ceive the transfer, rather than another who had less opportunity to 
satisfy the condition the transferrer used? Since the giver doesn’t 
care to whom he transfers, provided the recipient satisfies a certain 
general condition, equality of opportunity to be a recipient in such 
circumstances would violate no entitlement of the giver. Nor 
would it violate any entitlement of the person with the greater op- 
portunity; while entitled to what he has, he has no entitlement 
that it be more than another has. Wouldn’t it be better if the per- 
son with less opportunity had an equal opportunity? If one so 
could equip him without violating anyone else’s entitlements (the 
magic wand?) shouldn’t one do so? Wouldn’t it be fairer? If it 
would be fairer, can such fairness also justify overriding some 
people’s entitlements in order to acquire the resources to boost 
those having poorer opportunities into a more equal competitive 
position? 

The process is competitive in the following way. If the person 
with greater opportunity didn’t exist, the transferrer might deal 
with some person having lesser opportunity who then would be, 
under those circumstances, the best person available to deal with. 
This differs from a situation in which unconnected but similar 
beings living on different planets confront different difficulties and 
have different opportunities to realize various of their goals. There, 



Equality, Envy, Exploitation, Etc. 


237 


the situation of one does not affect that of another; though it would 
be better if the worse planet were better endowed than it is (it also 
would be better if the better planet were better endowed than it 
is), it wouldn’t be fairer. It also differs from a situation in which a 
person does not, though he could, choose to improve the situation 
of another. In the particular circumstances under discussion, a per- 
son having lesser opportunities would be better off if some particu- 
lar person having better opportunities didn’t exist. The person 
having better opportunities can be viewed not merely as someone 
better off, or as someone not choosing to aid, but as someone 
blocking or impeding the person having lesser opportunities from 
becoming better off . 4 Impeding another by being a more alluring 
alternative partner in exchange is not to be compared to directly 
worsening the situation of another, as by stealing from him. But 
still, cannot the person with lesser opportunity justifiably com- 
plain at being so impeded by another who does not deserve his bet- 
ter opportunity to satisfy certain conditions? (Let us ignore any 
similar complaints another might make about him.) 

While feeling the power of the questions of the previous two 
paragraphs (it is I who ask them), I do not believe they overturn a 
thoroughgoing entitlement conception. If the woman who later 
became my wife rejected another suitor (whom she otherwise 
would have married) for me, partially because (I leave aside my 
lovable nature) of my keen intelligence and good looks, neither of 
which did I earn, would the rejected less intelligent and less hand- 
some suitor have a legitimate complaint about unfairness? Would 
my thus impeding the other suitor’s winning the hand of fair lady 
justify taking some resources from others to pay for cosmetic 
surgery for him and special intellectual training, or to pay to de- 
velop in him some sterling trait that I lack in order to equalize our 
chances of being chosen? (I here take for granted the impermis- 
sibility of worsening the situation of the person having better op- 
portunities so as to equalize opportunity; in this sort of case by 
disfiguring him or injecting drugs or playing noises which prevent 
him from fully using his intelligence. 5 ) No such consequences follow. 
(Against whom would the rejected suitor have a legitimate com- 
plaint? Against what?) Nor are things different if the differential 
opportunities arise from the accumulated effects of people’s acting 
or transferring their entitlement as they choose. The case is even 



2 3 8 


Beyond the Minimal State? 


easier for consumption goods which cannot plausibly be claimed to 
have any such triadic impeding effect. Is it unfair that a child be 
raised in a home with a swimming pool, using it daily even 
though he is no more deserving than another child whose home is 
without one? Should such a situation be prohibited? Why then 
should there be objection to the transfer of the swimming pool to 
an adult by bequest? 

The major objection to speaking of everyone’s having a right to 
various things such as equality of opportunity, life, and so on, and 
enforcing this right, is that these “rights” require a substructure of 
things and materials and actions; and other people may have rights 
and entitlements over these. No one has a right to something 
whose realization requires certain uses of things and activities that 
other people have rights and entitlements over . 6 Other people’s 
rights and entitlements to particular things (that pencil, their body, 
and so on) and how they choose to exercise these rights and en- 
titlements fix the external environment of any given individual 
and the means that will be available to him. If his goal requires 
the use of means which others have rights over, he must enlist 
their voluntary cooperation. Even to exercise his right to determine 
how something he owns is to be used may require other means he 
must acquire a right to, for example, food to keep him alive; he 
must put together, with the cooperation of others, a feasible pack- 
age. 

There are particular rights over particular things held by partic- 
ular persons, and particular rights to reach agreements with oth- 
ers, if you and they together can acquire the means to reach an 
agreement. (No one has to supply you with a telephone so that 
you may reach an agreement with another.) No rights exist in 
conflict with this substructure of particular rights. Since no neatly 
contoured right to achieve a goal will avoid incompatibility with 
this substructure, no such rights exist. The particular rights over 
things fill the space of rights, leaving no room for general rights to 
be in a certain material condition. The reverse theory would place 
only such universally held general “rights to” achieve goals or to 
be in a certain material condition into its substructure so as to de- 
termine all else; to my knowledge no serious attempt has been 
made to state this “reverse” theory. 



Equality, Envy, Exploitation, Etc. 


2 39 


SELF-ESTEEM AND ENVY 

It is plausible to connect equality with self-esteem . 7 The envious 
person, if he cannot (also) possess a thing (talent, and so on) that 
someone else has, prefers that the other person not have it either. 
The envious man prefers neither one having it, to the other’s hav- 
ing it and his not having it.* 


* With regard to you, another person, and having a kind of object or at- 
tribute, there are four possibilities: 



HE 

YOU 

I . 

has it 

have it 

2. 

has it 

don’t have 

3 - 

doesn’t have it 

have it 

4 - 

doesn’t have it 

don’t have 


You are envious (with regard to him and that kind of object or attribute; I 
suppress the relativization in what follows) if you prefer 4 to 2, while preferring 
3 to 4. (The “while” is the “and" of conjunction.) You a.te jealous if you prefer 1 
to 2, while being indifferent between 3 and 4. The root idea is that you are 
jealous if you want it because he has it. The condition formulated says you want 
it solely because he has it. A weaker condition would say that you are jealous if 
you want it more because he has it; that is, if you prefer 1 to 2 more than you 
prefer 3 to 4. Similarly we can formulate a less strong condition for envy. A 
strongly envious man prefers the other not have the thing if he himself 
doesn’t. A partially envious man may be willing for the other to have the thing 
even though he himself cannot, but he prefers this less strongly than he prefers 
that the other have the thing if he himself does; that is, he prefers 2 to 4 less 
than he prefers 1 to 3. You are begrudging if you prefer 3 to 1, while preferring 
3 to 4. You are spiteful if you prefer 4 to 1, while preferring 3 to 4. You are 
competitive if you prefer 3 to 4, while being indifferent between 1 and 4. 

A competitive person is begrudging. A spiteful person is begrudging. There 
are envious people who are not jealous (in the sense of the weaker condition). 
Though it is not a theorem, it is a plausible psychological conjecture that most 
jealous people are envious. And surely it is a psychological law that spiteful 
people are envious. 

Compare the similar though somewhat different distinctions that Rawls 
draws ( Theory of Justice, sect. 80). Rawls' notion of envy is stronger than ours. 
We can formulate a close equivalent of his, by letting /(X) be the /th row in 
the above matrix for something X; i(Y) be the /th row for something Y. You 
are envious in Rawls’ strong sense if you prefer 4(X) and 4 (Y) to 2(X) and 
1 (Y); that is, if you prefer that neither of you have either X or Y, rather than 
that he have both X and Y while you have only Y. You are willing to give up 
something to erase the differential. Rawls uses both “jealous” and “begrudging” 



240 


Beyond the Minimal State? 


People often have claimed that envy underlies egalitarianism. 
And others have replied that since egalitarian principles are sepa- 
rately justifiable, we need attribute no disreputable psychology to 
the egalitarian; he desires merely that correct principles be real- 
ized. In view of the great ingenuity with which people dream up 
principles to rationalize their emotions, and given the great dif- 
ficulty in discovering arguments for equality as a value in itself, this 
reply is, to say the least, unproven. (Nor is it proven by the fact 
that once people accept egalitarian principles, they might support 
the worsening of their own position as an application of these gen- 
eral principles.) 

Here I prefer to focus on the strangeness of the emotion of envy. 
Why do some people prefer that others not have their better score 
on some dimension, rather than being pleased at another’s being 
well-off or having good fortune; why don’t they at least just shrug 
it off? One line seems especially worth pursuing: A person with a 
score along some dimension would rather another person with a 
higher score H had scored less well than H, even though this will 
not raise his own score, in those cases when the other person’s hav- 
ing a higher score than himself threatens or undermines his own 
self-esteem and makes him feel inferior to the other in some im- 
portant way. How can another’s activities, or characteristics, affect 
one’s own self-esteem? Shouldn’t my self-esteem, feeling of worth, 
and so forth, depend only upon facts about me? If it is me that I’m 
evaluating in some way, how can facts about other persons play a 
role? The answer, of course, is that we evaluate how well we do 
something by comparing our performance to others, to what 
others can do. A man living in an isolated mountain village can 
sink 15 jump shots with a basketball out of 150 tries. Everyone 
else in the village can sink only 1 jump shot out of 150 tries. He 
thinks (as do the others) that he’s very good at it. One day, along 
comes Jerry West. Or, a mathematician works very hard and oc- 
casionally thinks up an interesting conjecture, nicely proves a 
theorem, and so on. He then discovers a whole group of whizzes at 
mathematics. He dreams up a conjecture, and they quickly prove 


for our 'begrudging'’ and has nothing corresponding to our “jealous.” Our no- 
tion of spite here is stronger than his, and he has no notion corresponding to 
our “competitive.” 




Equality, Envy, Exploitation, Etc. 


241 


or disprove it (not in all possible cases, because of Church’s 
theorem), constructing very elegant proofs; they themselves also 
think up very deep theorems, and so on. 

In each of these cases, the person will conclude that he wasn’t 
very good or adept at the thing after all. There is no standard of 
doing something well, independent of how it is or can be done by 
others. At the end of his book Literature and Revolution, in describ- 
ing what man will be like (eventually) in a communist society, 
Leon Trotsky says: 

Man will become immeasurably stronger, wiser, and subtler; his body 
will become more harmonized, his movements more rhythmic, his voice 
more musical. The forms of life will become dynamically dramatic. The 
average human type will rise to the heights of an Aristotle, a Goethe, or 
a Marx. And above this ridge new peaks will rise. 

If this were to occur, the average person, at the level only of Aris- 
totle, Goethe, or Marx, wouldn’t think he was very good or adept 
at those activities. He would have problems of self-esteem! Some- 
one in the circumstances of the described basketball player or 
mathematician might prefer that the other persons lacked their 
talents, or prefer that they stop continually demonstrating their 
worth, at least in front of him; that way his self-esteem will avoid 
battering and can be shored up. 

This would be one possible explanation of why certain inequali- 
ties in income, or position of authority within an industry, or of 
an entrepreneur as compared to his employees, rankle so; not due to 
the feeling that this superior position is undeserved, but to the 
feeling that it is deserved and earned. It may injure one’s self-es- 
teem and make one feel less worthy as a person to know of some- 
one else who has accomplished more or risen higher. Workers in a 
factory started only recently by someone else previously a worker 
will be constantly confronted by the following thoughts: why not 
me? why am I only here? Whereas one can manage to ignore much 
more easily the knowledge that someone else somewhere has done 
more, if one is not confronted daily with him. The point, though 
sharper then, does not depend upon another’s deserving his supe- 
rior ranking along some dimension. That there is someone else 
who is a good dancer will affect your estimate of how good you 
yourself are at dancing, even if you think that a large part of grace 
in dancing depends upon unearned natural assets. 



242 


Beyond the Minimal State? 


As a framework for discussion that embodies these consider- 
ations (and not as a contribution to psychological theory), consider 
the following simple model. There are a number of different dimen- 
sions, dimensional attributes along which people can vary, 
D 1, . . . , D„, that people hold to be valuable. People may dif- 
fer as to what dimensions they think valuable, and they may differ 
as to the (nonzero) weights they give to the dimensions they agree 
in considering valuable. For each person, there will be a factual 
profile that presents his objective position along each dimension; for 
example, on the jump-shot dimension, we might have “able regu- 
larly to score jump shots out of 100 tries from 20 feet out,” 

and a person’s score might be 20, or 34, or 67. 

For simplicity, let us assume that a person’s beliefs about his 
factual profile are reasonably accurate. Also there will be an evalua- 
tive profile to represent how the person evaluates his own scores on 
the factual profile. There will be evaluative classifications (for ex- 
ample, excellent, good, satisfactory, poor, awful) representing his 
evaluation of himself for each dimension. These individual evalua- 
tions, how he gets from the factual score to the evaluations, will 
depend upon his factual beliefs about the factual profiles of other 
similar beings (the “reference group”), the goals he was given as a 
child, and so on. All shape his level of aspiration, which itself will 
vary over time in roughly specifiable ways. Each person will make 
some overall estimate of himself; in the simplest case this will 
depend solely on his evaluative profile and his weighting of the 
dimensions. How it depends upon this may vary from individual to 
individual. Some may take the weighted sum of their scores over 
all the dimensions; others may evaluate themselves as OK if they 
do well on some reasonably important dimension; still others may 
think that if they fall down on any important dimension they 
stink. 

In a society where people generally agree that some dimensions 
are very important, and there are differences in how people fall 
along these dimensions, and some institutions publicly group peo- 
ple in accordance with their place along these dimensions, then 
those who score low may feel inferior to those with higher scores; 
they may feel inferior as persons. (Thus, poor people might come to 
think they are poor people.) One might try to avoid such feelings of 
inferiority by changing the society so that either those dimensions 



Equality, Envy, Exploitation, Etc. 


243 


which served to distinguish people are downgraded in importance, 
or so that people do not have an opportunity publicly to exercise 
their capacities along these dimensions or to learn how others score 
on them.* 

It might appear obvious that if people feel inferior because they 
do poorly along some dimensions, then if these dimensions are 
downgraded in importance or if scores along them are equalized, 
people no longer will feel inferior. (“0/ course!”) The very reason 
they have for feeling inferior is removed. But it may well be that 
other dimensions would replace the ones eliminated with the same 
effects (on different persons). If, after downgrading or equalizing 
one dimension, say wealth, the society comes generally to agree 
that some other dimension is most important, for example, aes- 
thetic appreciativeness, aesthetic attractiveness, intelligence, ath- 
letic prowess, physical grace, degree of sympathy with other per- 
sons, quality of orgasm, then the phenomenon will repeat itself. 8 

People generally judge themselves by how they fall along the 
most important dimensions in which they differ from others. Peo- 
ple do not gain self-esteem from their common human capacities 
by comparing themselves to animals who lack them. (“I’m pretty 
good; I have an opposable thumb and can speak some language.”) 
Nor do people gain or maintain self-esteem by considering that 
they possess the right to vote for political leaders, though when 
the franchise was not widely distributed things may have been dif- 
ferent. Nor do people in the United States today have a sense of 
worth because they are able to read and write, though in many 
other societies in history this has served. When everyone, or al- 
most everyone, has some thing or attribute, it does not function as 
a basis for self-esteem. Self-esteem is based on differentiating charac- 
teristics; that’s why it’s self-esteem. And as sociologists of reference 
groups are fond of pointing out, who the others are changes. First- 
year students at prestige colleges may have a sense of individual 


* If a society's most important dimension, by common consensus, is unde- 
tectable in that it cannot directly be determined where along it a person falls, 
people will come to believe that a person’s score on this dimension is correlated 
with his score on another dimension along which they can determine relative 
positions (the halo effect). Thus, people for whom the presence of divine grace 
is the most important dimension will come to believe other worthy detectable 
facts indicate its presence; for example, worldly success. 



244 Beyond the Minimal State? 

worth based on attending those schools. This feeling is more pro- 
nounced, indeed, during their last two months of high school. But 
when everyone they associate with is in a similar position, the fact 
of going to these schools no longer serves as a basis for self-esteem, 
except perhaps when they return home during vacation (or in 
thought) to those not there. 

Consider how you would set about to bolster the self-esteem of 
an individual who, perhaps from limited capacity, scored lower 
than all others on all the dimensions others considered important 
(and who scored better on no dimension one plausibly could argue 
was important or valuable). You might tell the person that though 
his absolute scores were low, he had done well (given his limited 
capacities). He had realized a greater proportion of his capacities 
than most and fulfilled more of his potential than others do; con- 
sidering where he had started, and with what, he had ac- 
complished a great deal. This would reintroduce comparative eval- 
uation, by citing another important (meta)dimension along which 
he does do well as compared to others.* 

These considerations make one somewhat skeptical of the chances 
of equalizing self-esteem and reducing envy by equalizing posi- 
tions along that particular dimension upon which self-esteem is 
(happens to be) importantly based. Think of the varied attributes 


* Is there any important dimension along which it is inappropriate to judge 
oneself comparatively? Consider the following statement by Timothy Leary: 
“It’s my ambition to be the holiest, wisest, most beneficial man alive today. 
Now this may sound megalomaniac, but I don’t see why. I don’t see why . . . 
every person who lives in the world, shouldn’t have that ambition. What else 
should you try to be? The president of the board, or the chairman of the depart- 
ment, or the owner of this and that?” The Politics of Ecstasy (New York: College 
Notes and Texts, Inc., 1968), p. 218. There certainly is no objection to want- 
ing to be as holy, wise, and beneficial as possible, yet an ambition to be the 
holiest, wisest, and most beneficial person alive today is bizarre. Similarly, one 
can want to be as enlightened as possible (in the sense of Eastern traditions), 
but it would be bizarre to want especially to be the most enlightened person 
alive, or to be more enlightened than someone else. How one values one’s degree 
of enlightenment depends only upon it, whatever others are like. This suggests 
that the absolutely most important things do not lend themselves to such com- 
parative evaluation; if so, the comparative theory in the text would not hold 
universally. However, given the nature of the exceptions, this fact would be of 
limited sociological (though of great personal) interest. Also, those who do not 
evaluate themselves comparatively will not need equalization to take place along 
certain dimensions as a support for their self-esteem. 



Equality, Envy, Exploitation, Etc. 


245 


one can envy another’s having, and one will realize the vast oppor- 
tunities for differential self-esteem. Recall now Trotsky’s specula- 
tion that under communism everyone would reach the level of 
Aristotle, Goethe, or Marx, and from his ridge new peaks would 
rise. Being at this ridge would no more give everyone self-esteem 
and a feeling of individual worth than does the ability to speak a 
language or the possession of hands able to grasp things. Some 
simple and natural assumptions might even lead to a principle of 
the conservation of envy. And one might worry, if the number of 
dimensions is not unlimited and if great strides are made to elimi- 
nate differences, that as the number of differentiating dimensions 
shrinks, envy will become more severe. For with a small number 
of differentiating dimensions, many people will find they don’t do 
well on any of them. Though the weighted sum of a number of in- 
dependently varying normal distributions itself will be normal, if 
each individual (who knows his score on each dimension) weights 
the dimensions differently from the way other persons do, the total 
sum of all the different individuals’ differently weighted combina- 
tions need not itself be a normal distribution, even though the 
scores on each dimension are normally distributed. Everyone 
might view themselves as at the upper end of a distribution (even 
of a normal distribution) since each sees the distribution through 
the perspective of the particular weights he assigns. The fewer the 
dimensions, the less the opportunity for an individual successfully 
to use as a basis for self-esteem a nonuniform weighting strategy 
that gives greater weight to a dimension he scores highly in. (This 
suggests that envy can be reduced only by a fell-swoop elimination 
of all differences.) 

Even if envy is more tractable than our considerations imply, it 
would be objectionable to intervene to reduce someone’s situation 
in order to lessen the envy and unhappiness others feel in knowing 
of his situation. Such a policy is comparable to one that forbids 
some act (for example, racially mixed couples walking holding 
hands) because the mere knowledge that it is being done makes 
others unhappy (see Chapter 10). The same kind of externality is 
involved. The most promising ways for a society to avoid 
widespread differences in self-esteem would be to have no common 
weighting of dimensions; instead it would have a diversity of dif- 
ferent lists of dimensions and of weightings. This would enhance 



246 


Beyond the Minimal State? 

each person’s chance of finding dimensions that some others also 
think important, along which he does reasonably well, and so to 
make a nonidiosyncratic favorable estimate of himself. Such a frag- 
mentation of a common social weighting is not to be achieved by 
some centralized effort to remove certain dimensions as important. 
The more central and widely supported the effort, the more con- 
tributions to it will come to the fore as the commonly agreed upon 
dimension on which will be based people’s self-esteem. 


MEANINGFUL WORK 

Often it is claimed that being subordinate in a work scheme ad- 
versely affects self-esteem in accordance with a social-psychological 
law or fundamental generalization such as the following: A long 
period of being frequently ordered about and under the authority 
of others, unselected by you, lowers your self-esteem and makes 
you feel inferior; whereas this is avoided if you play some role in 
democratically selecting these authorities and in a constant process 
of advising them, voting on their decisions, and so on. 

But members of a symphony orchestra constantly are ordered 
about by their conductor (often capriciously and arbitrarily and 
with temper flareups) and are not consulted about the overall in- 
terpretation of their works. Yet they retain high self-esteem and 
do not feel that they are inferior beings. Draftees in armies are 
constantly ordered about, told how to dress, what to keep in their 
lockers, and so on, yet they do not come to feel they are inferior 
beings. Socialist organizers in factories received the same orders 
and were subject to the same authority as others, yet they did not 
lose their self-esteem. Persons on the way up organizational lad- 
ders spend much time taking orders without coming to feel infe- 
rior. In view of the many exceptions to the generalization that 
“order following in a subordinate position produces low self-es- 
teem” we must consider the possibility that subordinates with low 
self-esteem begin that way or are forced by their position to face 
the facts of their existence and to consider upon what their es- 
timate of their own worth and value as a unique person is based, 
with no easy answers forthcoming. They will be especially hard 



Equality, Envy, Exploitation, Etc. 


247 


pressed for an answer if they believe that others who give them 
orders have a right to do so that can be based only upon some per- 
sonal superiority. On an entitlement theory, of course, this need not 
be so. People may be entitled to decide about certain resources, 
the terms on which others may use them, and so on, through 
no sterling qualities of their own; such entitlements may have 
been transferred to them. Perhaps readers concerned about dif- 
ferential self-esteem will help to make the entitlement theory bet- 
ter known, and thereby undercut one ground for lesser self-esteem. 
This will not, of course, remove all such grounds. Sometimes a 
person’s entitlements clearly will stem from his own attributes and 
previous activities, and in these cases comparisons will be unpleas- 
ant to face. 

The issue of meaningful and satisfying work is often merged 
with discussions of self-esteem. Meaningful and satisfying work is 
said to include: (1) an opportunity to exercise one’s talents and 
capacities, to face challenges and situations that require indepen- 
dent initiative and self-direction (and which therefore is not boring 
and repetitive work); (2) in an activity thought to be of worth by 
the individual involved; (3) in which he understands the role his 
activity plays in the achievement of some overall goal; and (4) such 
that sometimes, in deciding upon his activity, he has to take into 
account something about the larger process in which he acts. Such 
an individual, it is said, can take pride in what he’s doing and in 
doing it well; he can feel that he is a person of worth, making a 
contribution of value. Further, it is said that apart from the intrin- 
sic desirability of such kinds of work and productivity, performing 
other sorts of work deadens individuals and leads them to be less 
fulfilled persons in all areas of their lives. 

Normative sociology, the study of what the causes of problems 
ought to be, greatly fascinates all of us. If X is bad, and Y which 
also is bad can be tied to X via a plausible story, it is very hard to 
resist the conclusion that one causes the other. We want one bad 
thing to be caused by another. If people ought to do meaningful 
work, if that’s what we want people to be like, 9 and if via some 
story we can tie the absence of such work (which is bad) to another 
bad thing (lack of initiative generally, passive leisure activities, 
and so on), then we happily leap to the conclusion that the second 
evil is caused by the first. These other bad things, of course, may 



248 


Beyond the Minimal State? 


exist for other reasons; and indeed, given selective entry into certain 
sorts of jobs, the correlation may be due to the fact that those 
predisposed to show low independent activity are just those who 
are most willing to take and remain with certain jobs involving 
little opportunity for independent flowering. 

It often has been noted that fragmentation of tasks, rote activ- 
ity, and detailed specification of activity which leaves little room 
for the exercise of independent initiative are not problems special 
to capitalist modes of production; it seems to go with industrial 
society. How does and could capitalism respond to workers’ desires 
for meaningful work? If the productivity of the workers in a fac- 
tory rises when the work tasks are segmented so as to be more 
meaningful, then individual owners pursuing profits so will 
reorganize the productive process. If the productivity of workers 
remains the same under such meaningful division of labor, then in 
the process of competing for laborers firms will alter their internal 
work organization. 

So the only interesting case to consider is that in which dividing 
a firm’s work tasks into meaningful segments, rotation of labor, 
and so forth, is less efficient {as judged by market criteria), than the 
less meaningful division of labor. This lessened efficiency can be 
borne in three ways (or in combinations of them). First, the work- 
ers in the factories themselves might desire meaningful work. It 
has all of the virtues its theorists ascribe to it, the workers realize 
this, and they are willing to give up something (some wages) in 
order to work at meaningfully segmented jobs. They work for 
lower wages, but they view their total work package (lower wages 
plus the satisfactions of meaningful work) as more desirable than 
less meaningful work at higher wages. They make a trade-off of 
some wages for some increase in the meaningfulness of their work, 
increased self-esteem, and so forth. Many persons do very similar 
things: They do not choose their occupations solely by the dis- 
counted value of expected future monetary earnings. They consider 
social relationships, opportunities for individual development, in- 
terestingness, job security, the fatiguing quality of the work, the 
amount of free time, and so on. (Many college teachers could earn 
more money working in industry. Secretaries in universities forgo 
the higher pay of industry for a less stressful and, in their view, 
more interesting environment. Many other examples could be 



Equality, Envy, Exploitation, Etc. 


249 


cited.) Not everyone wants the same things, or wants them as 
strongly. They choose among their employment activities on the 
basis of the overall package of benefits it gives them. Similarly, 
workers to whom a different organization of work mattered might 
choose to forgo some wages in order to get it; and no doubt those 
to whom it most matters actually do so in choosing among the jobs 
available to them. The rhythm of a farmer’s life differs from that 
of assembly-line workers (who total less than 5 percent of U.S. 
manual workers), whose income and life differ from that of a store 
clerk, and so on. 

But suppose that a more meaningful job isn’t worth that much 
to a worker; he will not take lower wages in order to get it. (I Vhen 
in his life isn’t it worth this? If at the beginning, then his scale of 
values is not itself the product of doing nonmeaningful work, and 
we should be wary of attributing his later character to his work ex- 
periences.) 

Mightn’t someone else bear the monetary costs of the lessened ef- 
ficiency? They might do so because they believe the cause is im- 
portant, even though not important enough to the individual 
worker himself so tha the will choose to bear the monetary costs. So, 
secondly, perhaps individual consumers will bear the costs by pay- 
ing more for what they buy. A group of us may band together into 
a buyers cooperative and buy only from factories whose work tasks 
are segmented meaningfully; or individually we may decide to do 
this. How much we do so will depend on how much the support 
of such activities is worth to us as compared to buying more of 
other goods, or to buying the items less expensively from factories 
whose work tasks are not segmented meaningfully and using the 
saved money to support other worthy causes — for example, medi- 
cal research or aid to struggling artists or to war victims in other 
countries. 

But what if it’s not worth enough either to individual workers 
or to individual consumers (including the members of social demo- 
cratic movements)? What alternative remains? The third possibil- 
ity is that workers might be forbidden to work in factories whose 
work tasks are not meaningfully segmented, or consumers might 
be forbidden to purchase the products of such factories. (Each 
prohibition would enact the other, de facto , in the absence of 
illegal markets.) Or the money to float the meaningfully seg- 



250 


Beyond the Minimal State? 


merited enterprise might be taken out of entrepreneurial profits. 
The last raises a large subject which I must leave for another oc- 
casion. But notice that there still would be the problem of how 
work tasks are to be organized even if there were no private owners 
and all firms were owned by their workers. In organizing its 
production, some firms would decide to divide jointly the in- 
creased monetary profits. Other firms either would have to do like- 
wise, or would have to set lower yearly income per worker, or 
would have to persuade some consumers to pay higher prices for 
their products. Perhaps a socialist government, in such a setup, 
would forbid nonmeaningful work; but apart from the question of 
how it would phrase the legislation, on what grounds could it im- 
pose its views on all those workers who would choose to achieve 
other ends? 


workers’ control 

Firms in a capitalist system might provide meaningful jobs to 
those who wanted them enough. Could it similarly supply inter- 
nally democratic authority structures? To some extent, certainly. 
But if the demand for democratic decisionmaking extends to pow- 
ers like ownership, then it cannot. Of course, as an alternative, 
persons may form their own democratically-run cooperative firms. It 
is open to any wealthy radical or group of workers to buy an exist- 
ing factory or establish a new one, and to institute their favorite 
microindustrial scheme; for example, worker-controlled, demo- 
cratically-run firms. The factory then could sell its products di- 
rectly into the market. Here we have possibilities similar to those 
we canvassed earlier. It may be that the internal procedures in 
such a factory will not lessen efficiency as judged by market cri- 
teria. For even though fewer hours are spent at work (some hours 
go into the activities of the process of democratic decisionmak- 
ing), in those hours the workers may work so efficiently and indus- 
triously for their own factory on projects they had a voice in shap- 
ing that they are superior, by market standards, to their more 
orthodox competitors (cf. the views of Louis Blanc). In which case 
there should be little difficulty in establishing financially success- 



Equality, Envy, Exploitation, Etc. 


2 5 I 


fill factories of this sort. I here ignore familiar difficulties about 
how a system of such workers’ control is to operate. If decisions are 
made by the vote of workers in the factory, this will lead to un- 
derinvestment in projects whose returns will come much later 
when many of the presently voting workers won’t benefit enough 
to outweigh withholding money from current distribution, either 
because they no longer work there and get nothing or because they 
then will have only a few years left. This underinvestment (and 
consequent worsening of the position of future workers) can be 
avoided if each worker owns a share in the factory which he can sell 
or bequeath, for then future expectations of earnings will raise the 
current value of his ownership share. (But then. . . . ) If each 
new worker acquires a right to an equal percentage of the annual 
net profit (or an equal ownership share), this will affect the group’s 
decisions to bring in new workers. Current workers, and therefore 
the factory, will have a strong incentive to choose to maximize 
average profits (profits per worker) rather than total profits, thereby 
employing fewer persons than a factory that employed everyone 
who profitably could be employed.* How will extra capital for ex- 
pansion be acquired? Will there be differences of income within 
factories? (How will the differences be determined?) And so on. 
Since a system of syndicalist factories would involve great inequali- 
ties of income among workers in different factories (with different 
amounts of capital per worker and different profitability), it is dif- 
ficult to see why people who favor certain egalitarian end-state pat- 
terns think this a suitable realization of their vision. 

If the worker-controlled factory so organized will be less ef- 
ficient by market criteria, so that it will not be able to sell articles 
as inexpensively as a factory geared mainly to inexpensive produc- 
tion with other values playing a secondary role or being absent al- 
together, this difficulty, as before, is handled easily in one of two 
ways (or a combination of them). First, the worker-controlled fac- 
tory can pay each worker less; that is, through whatever joint 
decisionmaking apparatus they use, they can pay themselves less 
than those employed in the more orthodox factories receive, thus 

* Since workers acting in their own individual interests will thwart the ef- 
ficient operation of worker-controlled factories, perhaps broadly based revolu- 
tionary movements should try to staff such factories with their “unselfish” 
members. 



252 


Beyond the Minimal State? 


. iJ^ng their factory to market 

ul «> ever the w °rkers refuse to * pr ° ducts at competitive prices. 

1 H for lower payment than tljj^ worker-controlled fac- 

tories ^monetary benefits of such eJ, d 0therw,se earn ’ that 1S ’ ^ 

% n °S>kat the extra money earne/t?™"* are less tm P orlant t0 them 
he worker-controlled factor, SeW m Wou ^ enable them to do, 
a its workers competitive / ^ tfy the second alternative of 
payin^products k wouId ask thc ^ ges aad charging higher prices 

fof * S ^han they would if they bo u [^ rChaSers of the P roduct s t0 P a V 
r ?° r , e yt competitor, telling the * ht , the P roducts from a more or- 
h ° thereby be supporting a ^ U " chasers that in so doing they 
™° U 6 their part for social justly k <; r - co ntrolled factory, and thus 
d ° mg ^ will be willing to inc Ur ^ gam> presumably some con- 
S T C will find making their ' He additional expense, while 
° the J S <f "Controlled factory less pr contribution to the 

>d using the money saved than buying less 

S1Vey ri we charitable contribution- 01 Cher P ur P oses - including al- 
™ r of persons to support t . 1£ there are not a sufficient 

nUmb - subsidies unrelated to co^ faCt ° ry ’ then (barring large 
pnVa J if there are a sufficient Sun JP c «>n) it will fail. It will 

SUCCe who are willing to some e Umber of workers and/or con ' 
sumer orf fhe enterprise . The • ent to use nonmonetary criteria 

and S of realizing the worker-cor^ P ° rtant P oint is that there " a 
I ? eanS py the voluntary actions of ° l S , cheme that can be brou 8 ht 
ab ° n U ' might think that in a so?^ in afree Sodety # 
r <vorker-controlled factories c *7. COnta * n * n S mostly private 

efficient. But if they w-/ ^ get started even though 

they vf re believed to be efficient they 

1 1 /ftt some sort of support »*- ca tu cmciciu, uiey 

could z? a market economy For such 

r communes or whatever economy. rur suui 

A hing (in considerable numb er ex P eri ment you wish, once 

fl ° U e(i t in their success, even if S) ’ repay any original in- 

VCSt ™ investment. And don’t say . dl *liked the principle of 

PflVa , investors to support the * S a S ainst the class inter ‘ 

CStS °^til would end or diminish th ^ th ° f some enterprise that if 
succes e investment system. Investors 


Ag*' 


n, there is the other method if 


. bese forcing people (workers and 


0 ( s) to cooperate in a worker-contr 0 i _ _ 

consum ^j^^g ava j[ a bi c . t0 them. scheme anc j t0 forgo the extra goods 

or wages 



Equality, Envy, Exploitation, Etc. 


253 


are not so altruistic. They act in their personal and not their class 
interests. On the other hand, how sufficient resources could be 
gathered in a state system to begin a private enterprise, supposing 
there were people willing to be laborers and consumers, is a more 
troublesome question. 

Even if it is more difficult to obtain external investment than 
the previous paragraph makes out, union treasuries now contain 
sufficient funds to capitalize many such worker-controlled firms 
which can repay the money with interest, as many private owners 
do with bank loans, and even with loans from labor unions. Why 
is it that some unions or groups of workers don’t start their own 
business? What an easy way to give workers access to the means of 
production: buy machinery and rent space, and so forth, just as a 
private entrepreneur does. It is illuminating to consider why 
unions don’t start new businesses, and why workers don’t pool 
their resources to do so. 


MARXIAN EXPLOITATION 

This question is of importance for what remains of Marxist eco- 
nomic theory. With the crumbling of the labor theory of value, 
the underpinning of its particular theory of exploitation dissolves. 
And the charm and simplicity of this theory’s definition of exploita- 
tion is lost when it is realized that according to the definition 
there will be exploitation in any society in which investment takes 
place for a greater future product (perhaps because of population 
growth); and in any society in which those unable to work, or to 
work productively, are subsidized by the labor of others. But at 
bottom, Marxist theory explains the phenomenon of exploitation 
by reference to the workers not having access to the means of 
production. The workers have to sell their labor (labor power) to 
the capitalists, for they must use the means of production to 
produce, and cannot produce alone. A worker, or groups of them, 
cannot hire means of production and wait to sell the product some 
months later; they lack the cash reserves to obtain access to ma- 
chinery or to wait until later when revenue will be received from 



254 


Beyond the Minimal State? 


the future sale of the product now being worked on. For workers 
must eat in the meantime.* Hence (the story goes) the worker is 
forced to deal with the capitalist. (And the reserve army of unem- 
ployed labor makes unnecessary the capitalists’ competing for 
workers and bidding up the price of labor.) 

Note that once the rest of the theory, properly, is dropped, and 
it is this crucial fact of nonaccess to the means of production that 
underlies exploitation, it follows that in a society in which the 
workers are not forced to deal with the capitalist, exploitation of 
laborers will be absent. (We pass over the question of whether 
workers are forced to deal with some other, less decentralized 
group.) So, if there is a sector of publicly owned and controlled 
(what you will) means of production that is expandable so that all 
who wish to may work in it, then this is sufficient to eliminate the 
exploitation of laborers. And in particular, if in addition to this 
public sector there is a sector of privately owned means of produc- 
tion that employs wage laborers who choose to work in this sector, 
then these workers are not being exploited. (Perhaps they choose 
to work there, despite attempts to convince them to do other- 
wise, because they get higher wages or returns in this sector.) 
For they are not forced to deal with the private owners of means 
of production. 

Let us linger for a moment upon this case. Suppose that the 
private sector were to expand, and the public sector became 
weaker and weaker. More and more workers, let us suppose, 
choose to work in the private sector. Wages in the private sector 
are greater than in the public sector, and are rising continually. 
Now imagine that after a period of time this weak public sector 
becomes completely insignificant; perhaps it disappears altogether. 
Will there be any concomitant change in the private sector? (Since 
the public sector was already small, by hypothesis, the new work- 
ers who come to the private sector will not affect wages much.) 
The theory of exploitation seems committed to saying that there 
would be some important change; which statement is very implau- 

* Where did the means of production come from? Who earlier forwent cur- 
rent consumption then in order to gain or produce them? Who now forgoes 
current consumption in paying wages and factor prices and thus gets returns 
only after the finished product is sold? Whose entrepreneurial alertness operated 
throughout? 



Equality, Envy, Exploitation, Etc. 


255 


sible. (There’s no good theoretical argument for it.) If there would 
not be a change in the level or the upward movement of wages in 
the private sector, are workers in the private sector, heretofore 
unexploited, now being exploited? Though they don’t even know 
that the public sector is gone, having paid scant attention to it, 
are they now forced to work in the private sector and to go to the 
private capitalist for work, and hence are they ipso facto exploited? 
So the theory would seem to be committed to maintaining. 

Whatever may have been the truth of the nonaccess view at one 
time, in our society large sections of the working force now have 
cash reserves in personal property, and there are also large cash re- 
serves in union pension funds. These workers can wait, and they 
can invest. This raises the question of why this money isn’t used to 
establish worker-controlled factories. Why haven’t radicals and 
social democrats urged this? 

The workers may lack the entrepreneurial ability to identify 
promising opportunities for profitable activity, and to organize 
firms to respond to these opportunities. In this case, the workers 
can try to hire entrepreneurs and managers to start a firm for them 
and then turn the authority functions over to the workers (who are 
the owners) after one year. (Though, as Kirzner emphasizes, entre- 
preneurial alertness would also be needed in deciding whom to 
hire.) Different groups of workers would compete for entrepre- 
neurial talent, bidding up the price of such services, while entre- 
preneurs with capital attempted to hire workers under traditional 
ownership arrangements. Let us ignore the question of what the 
equilibrium in this market would look like to ask why groups of 
workers aren’t doing this now. 

It’s risky starting a new firm. One can’t identify easily new en- 
trepreneurial talent, and much depends on estimates of future 
demand and of availability of resources, on unforeseen obstacles, 
on chance, and so forth. Specialized investment institutions and 
sources of venture capital develop to run just these risks. Some 
persons don’t want to run these risks of investing or backing new 
ventures, or starting ventures themselves. Capitalist society allows 
the separation of the bearing of these risks from other activities. 
The workers in the Edsel branch of the Ford Motor Company did 
not bear the risks of the venture, and when it lost money they did 
not pay back a portion of their salary. In a socialist society, either 



256 


Beyond the Minimal State? 


one must share in the risks of the enterprise one works in, or every- 
body shares in the risks of the investment decisions of the central 
investment managers. There is no way to divest oneself of these risks 
or to choose to carry some such risks but not others (acquiring spe- 
cialized knowledge in some areas), as one can do in a capitalist 
society. 

Often people who do not wish to bear risks feel entitled to 
rewards from those who do and win; yet these same people do not 
feel obligated to help out by sharing the losses of those who bear 
risks and lose. For example, croupiers at gambling casinos expect to 
be well-tipped by big winners, but they do not expect to be asked 
to help bear some of the losses of the losers. The case for such 
asymmetrical sharing is even weaker for businesses where success is 
not a random matter. Why do some feel they may stand back to 
see whose ventures turn out well (by hindsight determine who has 
survived the risks and run profitably) and then claim a share of the 
success; though they do not feel they must bear the losses if things 
turn out poorly, or feel that if they wish to share in the profits or 
the control of the enterprise, they should invest and run the risks 
also? 

To compare how Marxist theory treats such risks, we must take 
a brief excursion through the theory. Marx’s theory is one form of 
the productive resources theory of value. Such a theory holds that 
the value V of a thing X equals the sum total of society’s produc- 
tive resources embodied in X. Put in a more useful form, the ratio 
of the value of two things V(X)IV(Y) is equal to the ratio of the 
amount of productive resources embodied in them, M (resources in 
X)/M (resources in T), where M is a measure of the amount. Such 
a theory requires a measure M whose values are determined in- 
dependently of the V ratios to be explained. If we conjoin to the 
productive resources theory of value, the labor theory of productive 
resources, which holds that labor is the only productive resource, 
we obtain the labor theory of value. Many of the objections which 
have been directed toward the labor theory of value apply to any 
productive resources theory. 

An alternative to the productive resources theory of value might 
say that the value of productive resources is determined by the 
value of the final products that arise from them (can be made from 
them), where the value of the final product is determined in some 



Equality, Envy, Exploitation, Etc. 


257 


way other than by the value of the resources used in it. If one 
machine can be used to make X (and nothing else) and another can 
be used to make Y, and each uses the same raw materials in the 
same amounts to make a unit of its product, and X is more valu- 
able than Y, then the first machine is more valuable than the sec- 
ond, even if each machine contains the same raw materials and 
took the same amount of time to make. The first machine, having 
a more valuable final product, will command a higher price than 
the second. This may give rise to the illusion that its products are 
more valuable because it is more valuable. But this gets things 
backwards. It is more valuable because its products are. 

But the productive resources theory of value doesn’t talk about 
the value of the productive resources, only about their amounts. If 
there were only one factor of production, and it were homoge- 
neous, the productive resources theory at least could be non- 
circularly stated. But with more than one factor, or one factor of dif- 
ferent kinds, there is a problem in setting up the measure M to get 
the theory stated in a noncircular way. For it must be determined 
how much of one productive factor is to count as equivalent to a 
given amount of another. One procedure would be to set up the 
measure by reference to the values of the final products, solving the 
ratio equations. But this procedure would define the measure on 
the basis of information about final values, and so could not be 
used to explain final values on the basis of information about the 
amounts of inputs.* An alternative procedure would be to find 
some common thing that can be produced by X, and Y, in different 
quantities, and to use the ratio of the quantities of final product to 
determine the quantities of input. This avoids the circularity of 
looking at final values first; one begins by looking at final quantities 
of something, and then uses this information to determine quanti- 
ties of input (to define the measure Af). But even if there is a com- 
mon product, it may not be what the different factors are best 
suited for making; and so using it to compare them may give a 
misleading ratio. One has to compare the different factors at their 


* However if given the values of some final products (with great latitude 
about which ones would serve) the ratio equations could be used to specify the 
measure M and that could be used to yield the values for the other final prod- 
ucts, then the theory would have some content. 



2 5 8 


Beyond the Minimal State? 


individual best functions. Also, if two different things can be made 
by each resource, and the ratios of the amounts differ, there is the 
problem of which ratio is to be picked to provide the constant of 
proportionality between the resources. 

We can illustrate these difficulties by considering Paul Sweezy’s 
exposition of the concept of simple, undifferentiated labor time . 10 
Sweezy considers how skilled labor and unskilled labor are to be 
equated and agrees that it would be circular to do so on the basis 
of the value of the final product, since that’s what’s to be ex- 
plained. Sweezy then says that skill depends on two things: train- 
ing and natural differences. Sweezy equates training with the 
number of hours spent in training, without looking to the skill of 
the teacher, even as crudely measured by how many hours the 
teacher spent in training (and how many hours his teacher did?). 
Sweezy suggests getting at natural differences by having two per- 
sons make the same thing, and seeing how the quantities differ, 
thus finding the ratio to equate them. But if skilled labor of some 
sort is not best viewed as a faster way of producing the same prod- 
uct that unskilled labor produces, but rather as a way of producing 
a better product, then this method of defining the measure M won’t 
work. (In comparing Rembrandt’s skill with mine, the crucial fact 
is not that he paints pictures faster than I do.) It would be tedious 
to rehearse the standard counterexamples to the labor theory of 
value: found natural objects (valued above the labor necessary to 
get them); rare goods (letters from Napoleon) that cannot be re- 
produced in unlimited quantities; differences in value between 
identical objects at different places; differences skilled labor makes; 
changes caused by fluctuations in supply and demand; aged objects 
whose producing requires much time to pass (old wines), and so 
on . 11 

The issues thus far mentioned concern the nature of simple un- 
differentiated labor time, which is to provide the unit against 
which all else is to be measured. We now must introduce an addi- 
tional complication. For Marxist theory does not hold that the 
value of an object is proportional to the number of simple undif- 
ferentiated labor hours that went into its production; rather, the 
theory holds that the value of an object is proportional to the 
number of simple undifferentiated socially necessary labor hours that 



Equality, Envy, Exploitation, Etc. 


259 


went into its production.* Why the additional requirement that 
the labor hours be socially necessary? Let us proceed slowly. 

The requirement that an object have utility is a necessary com- 
ponent of the labor theory of value, if it is to avoid certain objec- 
tions. Suppose a person works on something absolutely useless that 
no one wants. For example, he spends hours efficiently making a 
big knot; no one else can do it more quickly. Will this object be 
that many hours valuable? A theory should not have this conse- 
quence. Marx avoids it as follows: “Nothing can have value with- 
out being an object of utility. If a thing is useless so is the labor 
contained in it; the labor does not count as labor, and therefore 
creates no value.” 12 Isn’t this an ad hoc restriction? Given the rest of 
the theory, who does it apply? Why doesn’t all efficiently done 
labor create value? If one has to bring in the fact that it’s of use to 
people and actually wanted (suppose it were of use, but no one 
wanted it), then perhaps by looking only at wants, which have to be 
brought in anyway, one can get a complete theory of value. 

Even with the ad hoc constraint that the object must be of some 
use, there remain problems. For, suppose someone works for 563 
hours on something of some very slight utility (and there is no way 
to make it more efficiently). This satisfies the necessary condition 
for value that the object have some utility. Is its value now deter- 
mined by the amount of labor, yielding the consequence that it is 
incredibly valuable? No. “For the labor spent on them (commodi- 
ties) counts effectively only insofar as it is spent in a form that is 
useful to others.” 13 Marx goes on to say: “Whether that labor is 


* “The labour time socially necessary is that required to produce an article 
under the normal conditions of production, and with the average degree of skill 
and intensity of labor prevalent at the time in a given society." Karl Marx, Cap- 
ital, vol. 1 (New York: Modern Library, n.d.), p. 46. Note that we also want 
to explain why normal conditions of production are as they are, and why a par- 
ticular skill and intensity of labor is used on that particular product. For it is 
not the average degree of skill prevalent in a society that is relevant. Most per- 
sons may be more skilled at making the product yet might have something even 
more important to do, leaving only those of less than average skill at work on 
it. What is relevant would have to be the skill of those who actually work at 
making the product. One wants a theory also to explain what determines which 
persons of varying skills work at making a particular product. I mention these 
questions, of course, because they can be answered by an alternative theory. 



260 


Beyond the Minimal State? 


useful for others, and its product consequently capable of satisfy- 
ing the wants of others, can be proved only by the act of 
exchange.” If we interpret Marx as saying, not that utility is a nec- 
essary condition and that (once satisfied) the amount of labor de- 
termines value, but rather that the degree of utility will determine 
how much (useful) labor has been expended on the object, then we 
have a theory very different from a labor theory of value. 

We can approach this issue from another direction. Suppose 
that useful things are produced as efficiently as they can be, but 
that too many of them are produced to sell at a certain price. The 
price that clears the market is lower than the apparent labor values 
of the objects; a greater number of efficient hours went into pro- 
ducing them than people are willing to pay for (at a certain price 
per hour). Does this show that the number of average hours de- 
voted to making an object of significant utility doesn’t determine 
its value? Marx’s reply is that if there is such overproduction so 
that the market doesn’t clear at a particular price, then the labor 
was inefficiently used (less of the thing should have been made), 
even though the labor itself wasn’t inefficient. Hence not all of 
those labor hours constituted socially necessary labor time. The 
object does not have a value less than the number of socially neces- 
sary labor hours expended upon it, for there were fewer socially 
necessary labor hours expended upon it than meet the eye. 

Suppose that every piece of linen in the market contains no more labor- 
time than is socially necessary. In spite of this, all the pieces taken as a 
whole may have had superfluous labor-time spent upon them. If the 
market cannot stomach the whole quantity at the normal price of 2 
shillings a yard, this proves that too great a portion of the total labor of 
the community has been expended in the form of weaving. The effect is 
the same as if each weaver had expended more labor-time upon his par- 
ticular product than is socially necessary. 14 

Thus Marx holds that this labor isn’t all socially necessary. What is 
socially necessary, and how much of it is, will be determined by 
what happens on the market!! 15 There is no longer any labor 
theory of value; the central notion of socially necessary labor time 
is itself defined in terms of the processes and exchange ratios of a 
competitive market! 16 

We have returned to our earlier topic, the risks of investment 
and production, which we see transforms the labor theory of value 



Equality, Envy, Exploitation, Etc. 


261 


into one defined in terms of the results of competitive markets. 
Consider now a system of payment in accordance with simple, un- 
differentiated, socially necessary labor hours worked. Under this 
system, the risks associated with a process of production are borne 
by each worker participating in the process. However many hours 
he works at whatever degree of efficiency, he will not know how 
many socially necessary labor hours he has worked until it is seen 
how many people are willing to buy the products at what price. A 
system of payment in accordance with the number of socially nec- 
essary labor hours worked therefore would pay some hard-working 
laborers almost not at all (those who worked for hula hoop manu- 
facturers after the fad had passed, or those who worked in the 
Edsel plant of the Ford Motor Company), and would pay others 
very little. (Given the great and nonaccidental incompetence of the 
investment and production decisions in a socialist society, it would 
be very surprising if the rulers of such a society dared to pay work- 
ers explicitly in accordance with the number of “socially necessary” 
labor hours they work!) Such a system would compel each individ- 
ual to attempt to predict the future market for the product he 
works on; this would be quite inefficient and would induce those 
who are dubious about the future success of a product to forgo a 
job they can do well, even though others are confident enough of 
its success to risk much on it. Clearly there are advantages to a 
system which allows persons to shift risks they themselves do not 
wish to bear, and allows them to be paid a fixed amount, whatever 
the outcome of the risky processes.* There are great advantages to 
allowing opportunities for such specialization in risk-bearing; 
these opportunities lead to the typical gamut of capitalist institu- 
tions. 

Marx attempts to answer the following Kantian-type question: 

* Such risks could not be insured against for every project. There will be dif- 
ferent estimates of these risks; and once having insured against them there will 
be less incentive to act fully to bring about the favorable alternative. So an in- 
surer would have to watch over or monitor one’s activities to avoid what is 
termed the “moral hazard.’’ See Kenneth Arrow, Essays in the Theory of Risk- 
Bearing (Chicago: Markham, 1971). Alchian and Demsetz, American Economic 
Review (1972), pp. 777—795, discuss monitoring activities; they arrive at the 
subject through considering problems about estimating marginal product in 
joint activities through monitoring input, rather than through considerations 
about risk and insurance. 



262 


Beyond the Minimal State? 


how are profits possible? 17 How can there be profits if everything 
gets its full value, if no cheating goes on? The answer for Marx lies 
in the unique character of labor power; its value is the cost of 
producing it (the labor that goes into it), yet it itself is capable of 
producing more value than it has. (This is true of machines as 
well.) Putting a certain amount of labor L into making a human 
organism produces something capable of expending an amount of 
labor greater thanL. Because individuals lack the resources to wait 
for the return from the sale of the products of their labor (see 
above), they cannot gather these benefits of their own capacities 
and are forced to deal with the capitalists. In view of the difficul- 
ties with Marxist economic theory, one would expect Marxists to 
study carefully alternative theories of the existence of profit, in- 
cluding those formulated by “bourgeois” economists. Though I 
have concentrated here on issues about risk and uncertainty, I 
should also mention innovation (Schumpeter) and, very impor- 
tantly, the alertness to and search for new opportunities for arbi- 
trage (broadly conceived) which others have not yet noticed . 18 An 
alternative explanatory theory, if adequate, presumably would re- 
move much of the scientific motivation underlying Marxist eco- 
nomic theory; one might be left with the view that Marxian ex- 
ploitation is the exploitation of people’s lack of understanding of 
economics. 


VOLUNTARY EXCHANGE 

Some readers will object to my speaking frequently of voluntary 
exchanges on the grounds that some actions (for example, workers 
accepting a wage position) are not really voluntary because one 
party faces severely limited options, with all the others being 
much worse than the one he chooses. Whether a person’s actions 
are voluntary depends on what it is that limits his alternatives. If 
facts of nature do so, the actions are voluntary. (I may voluntarily 
walk to someplace I would prefer to fly to unaided.) Other people’s 
actions place limits on one’s available opportunities. Whether this 
makes one’s resulting action non-voluntary depends upon whether 
these others had the right to act as they did. 



Equality, Envy, Exploitation, Etc. 


263 


Consider the following example. Suppose there are twenty-six 
women and twenty-six men each wanting to be married. For each 
sex, all of that sex agree on the same ranking of the twenty-six 
members of the opposite sex in terms of desirability as marriage 
partners: call them A to Z and A' to Z' respectively in decreasing 
preferential order. A and A' voluntarily choose to get married, 
each preferring the other to any other partner. B would most 
prefer to marry A', and B' would most prefer to marry A, but by 
their choices A and A' have removed these options. When B 
and B' marry, their choices are not made nonvoluntary merely by 
the fact that there is something else they each would rather do. 
This other most preferred option requires the cooperation of others 
who have chosen, as is their right, not to cooperate. B and B' chose 
among fewer options than did A and A ' . This contraction of the 
range of options continues down the line until we come to Z and 
Z', who each face a choice between marrying the other or remain- 
ing unmarried. Each prefers any one of the twenty-five other 
partners who by their choices have removed themselves from con- 
sideration by Z and Z'. Z and Z' voluntarily choose to marry each 
other. The fact that their only other alternative is (in their view) 
much worse, and the fact that others chose to exercise their rights 
in certain ways, thereby shaping the external environment of op- 
tions in which Z and Z' choose, does not mean they did not marry 
voluntarily. 

Similar considerations apply to market exchanges between 
workers and owners of capital. Z is faced with working or starv- 
ing; the choices and actions of all other persons do not add up to 
providing Z with some other option. (He may have various op- 
tions about what job to take.) Does Z choose to work voluntarily? 
(Does someone on a desert island who must work to survive?) Z 
does choose voluntarily if the other individuals A through Y each 
acted voluntarily and within their rights. We then have to ask the 
question about the others. We ask it up the line until we reach A, 
or A and B , who chose to act in certain ways thereby shaping the 
external choice environment in which C chooses. We move back 
down the line with A through C ’ s voluntary choice affecting D’s 
choice environment, and A through D’s choices affecting E ’ s 
choice environment, and so on back down to Z. A person’s choice 
among differing degrees of unpalatable alternatives is not rendered 



264 


Beyond the Minimal State? 


nonvoluntary by the fact that others voluntarily chose and acted 
within their rights in a way that did not provide him with a more 
palatable alternative. 

We should note an interesting feature of the structure of rights 
to engage in relationships with others, including voluntary 
exchanges.* The right to engage in a certain relationship is not a 
right to engage in it with anyone, or even with anyone who wants 
to or would choose to, but rather it is a right to do it with anyone 
who has the right to engage in it (with someone who has the right 
to engage in it . . .). Rights to engage in relationships or transac- 
tions have hooks on them, which must attach to the corresponding 
hook of another’s right that comes out to meet theirs. My right of 
free speech is not violated by a prisoner’s being kept in solitary 
confinement so that he cannot hear me, and my right to hear in- 
formation is not violated if this prisoner is prevented from com- 
municating with me. The rights of members of the press are not 
violated if Edward Everett Hale’s “man without a country’’ is not 
permitted to read some of their writings, nor are the rights of 
readers violated if Josef Goebbels is executed and thereby pre- 
vented from providing them with additional reading material. In 
each case, the right is a right to a relationship with someone else 
who also has the right to be the other party in such a relationship. 
Adults normally will have the right to such a relationship with 
any other consenting adult who has this right, but the right may 
be forfeited in punishment for wrongful acts. This complication of 
hooks on rights will not be relevant to any cases we discuss. But it 
does have implications; for example it complicates an immediate 
condemnation of the disruption of speakers in a public place, solely 
on the grounds that this disruption violates the rights of other 
people to hear whatever opinions they choose to listen to. If rights 
to engage in relationships go out only half-way, these others do 
have a right to hear whatever opinions they please, but only from 
persons who have a right to communicate them. Hearers’ rights 
are not violated if the speaker has no hook to reach out to join up 
with theirs. (The speaker can lack a hooked right only because of 
something he has done, not because of the content of what he is 


* Since I am unsure of this point, I put this paragraph forward very tenta- 
tively, as an interesting conjecture. 



Equality, Envy, Exploitation, Etc. 


265 


about to say.) My reflections here are not intended to justify 
disruption, merely to warn against the too simple grounds for con- 
demnation which I myself have been prone to use. 


PHILANTHROPY 

I have pointed out how individuals might choose to help support 
types of activities or institutions or situations they favor; for ex- 
ample, worker-controlled factories, opportunity for others, reduc- 
tion of poverty, meaningful work situations. But will even those 
people who favor these causes choose to make such charitable con- 
tributions to others, even when their tax burdens are lifted? Don’t 
they want the elimination or abolition of poverty, of meaningless 
work, and isn’t their contribution only a drop in that bucket? And 
won’t they feel like suckers if they give while others do not? 
Mightn’t it be that they all favor compulsory redistribution even 
though they would not make private charitable gifts were there no 
compulsion upon all? 

Let us suppose a situation in which there is universally favored 
compulsory redistribution, with transfers being made from rich in- 
dividuals to poor individuals. But let us suppose that the govern- 
ment, perhaps in order to save the costs of transferal, operates the 
compulsory system- by having each rich individual each month 
send his amount by money order to the post office box of a recipi- 
ent whose identity he does not know and who does not know 
his . 19 The total transfer is the total of these individual transfers. 
And by hypothesis, each individual who pays supports the com- 
pulsory system. 

Now let us suppose that the compulsion is removed. Will the 
individuals continue to make their transfers voluntarily? Pre- 
viously a contribution helped a specific individual. It will continue 
to help that individual, whether or not others continue their con- 
tribution. Why should someone no longer want to do it? There are 
two types of reasons worth considering: first, his contribution has 
less effect on the problem than under the compulsory scheme; sec- 
ond, his making a contribution involves his making more of a sac- 
rifice than under the compulsory scheme. What his payment under 



266 


Beyond the Minimal State? 

the compulsory scheme accomplishes is worth to him this pay- 
ment. He no longer contributes in a voluntary scheme either 
because that contribution buys him less or because it costs him 
more. 

Why might his contribution have less of an effect in the absence 
of some or all of the other contributions? Why might it buy him 
less? First, the person may desire the abolition and eradication of 
poverty (meaningless work, people in subordinate positions, and 
so on) in a way that gives this a value above and beyond the elimi- 
nation of each individual’s poverty . 20 The realization of the ideal of 
no poverty, and so forth, has independent value for him.* (Given 
social inefficiency, it never will happen that strictly none remains.) 
But since he will continue to contribute so long as the others do 
(and will view his own contribution as very important, given that 
the others contribute), this cannot be the motivation that leads 
any person to stop contributing. Some reminder may be needed, 
perhaps, of why one wants to eliminate various evils, which rea- 
sons will focus upon why particular evils are undesirable, apart 
from whether or not they are duplicated elsewhere. The reduction 
of an evil from two instances to one is as important as its reduction 
from one to zero. One mark of an ideologue is to deny this. Those 
prone to work for compulsory giving because they are surrounded 
by such ideologues, would better spend their time trying to bring 
their fellow citizens’ abstractions down to earth. Or, at least, they 
should favor a compulsory system that includes within its net only 
such ideologues (who favor the compulsory system). 

A second and more respectable reason why his voluntary con- 
tribution would buy him less, and thus be a reason for someone to 
stop his contributions under a voluntary system while favoring a 
compulsory one, would be the belief that the phenomenon to be 
eliminated contains internal aggravating interactions. Only if all 
components are simultaneously treated will a treatment of a given 
component have a certain result. Such a treatment both aids a 
given component and reduces its aggravation of the condition of 


* Sometimes indeed, one encounters individuals for whom the universal erad- 
ication of something has very great value while its eradication in some particu- 
lar cases has almost no value at all; individuals who care about people in the ab- 
stract while, apparently, not having such care about any particular people. 



Equality, Envy, Exploitation, Etc. 


267 


Other components; but this reduction in the external aggravation 
on each other individual may be negligible by itself or may be 
below a certain threshold. In such a situation, your giving $» to 
one individual while many others each give $« to each or most of 
the other individuals interacting with the recipient of your con- 
tribution may produce a significant effect on your recipient, worth 
to you your giving up the $n; whereas your being alone in giving 
$» to your recipient will not produce as great an effect on him. 
Since the actual effect produced may not be worth $n to you, you 
will not contribute voluntarily. But again, this is not a reason why 
those giving would stop; however, it is a reason why those giving 
would stop if the others stop, and hence it would be a reason why 
it might be difficult to start up such general giving. People who 
work to institute a compulsory scheme could devote their energies 
to establishing a coordinated start-up. This task is made easier by 
the fact that people want not only that some evil be reduced or 
eliminated; they also want to help in this and to be a part of what 
produces the alleviation of the problem. This desire diminishes the 
“free rider” problem. 

Let us now turn to why the person’s contribution (of the same 
amount of money as under the compulsory scheme) might “cost” 
him more. He might feel that only “suckers” or "saps” make 
special sacrifices when others are “getting away” with not making 
any; or he might be upset by the worsening of his position relative 
to those who don’t contribute; or this worsening of relative posi- 
tion might put him in a worse competitive position (relative to 
these others) to gain something he wants. Each person in a group 
might feel this about himself and the others, and so each one in 
the group might prefer a system under which everyone is com- 
pelled to contribute over a voluntary system.* (These feelings 
might hold along with the two other reasons previously listed.) 


* Though everyone might favor some compulsory scheme over a voluntary 
one, there need be no one compulsory scheme that each person favors most, or 
even one that each person favors over the voluntary one. Funds can be raised by 
a proportional tax, or by any number of different progressive taxes. So it is not 
clear how unanimous agreement to one particular scheme is supposed to arise. (I 
take this point from "Coercion,” in S. Morgenbesser, P. Suppes, and M. 
White, eds., Philosophy, Science, and Method (N.Y.: St. Martins Press, 1969), 
pp. 440 - 72 , n. 47.) 



268 


Beyond the Minimal State? 


However, if all prefer giving provided all the others do also, all 
can jointly contract to give contingent upon the others’ giving. It 
is not plausible to suppose that some might prefer not to contrib- 
ute provided the others give. For the system which directly chan- 
nels funds to the recipients (with random selection among poten- 
tial recipients of who receives the payment) minimizes “free rider’’ 
motivations, since each person’s contribution will be having a sep- 
arate effect. Even if some had such motivations, if the others were 
a sizable enough group not to be rankled by the absence of some 
and so to drop out themselves, they (once again) can contribute by 
jointly contracting to give contingent upon the (remaining) others’ 
giving also. The case to consider, then, involves some in a certain 
income bracket who refuse to give, whether or not the others give. 
They don’t desire to be free riders; they don’t care about the ride 
at all. Yet the others might be willing to give only if all who can 
afford it give. The refusers would not agree to all being forced to 
contribute, and so the redistributive move contrary to our hypoth- 
esis is not to a Pareto-better position . 21 Since it would violate 
moral constraints to compel people who are entitled to their hold- 
ings to contribute against their will, proponents of such compul- 
sion should attempt to persuade people to ignore the relatively few 
who don’t go along with the scheme of voluntary contributions. 
Or, is it relatively many who are to be compelled to contribute, 
though they would not so choose, by those who don’t want to feel 
they are “suckers”? 


HAVING A SAY OVER WHAT AFFECTS YOU 

Another view which might lead to support for a more extensive 
state holds that people have a right to a say in the decisions that 
importantly affect their lives . 22 (It would then be argued that a 
more extensive government is needed to realize this right and is 
one of the institutional forms through which this right is to be ex- 
ercised.) The entitlement conception would examine the means 
whereby people’s lives are importantly affected. Some ways of im- 
portantly affecting their lives violate their rights (rights of the sort 
Locke would admit) and hence are morally forbidden; for example, 
killing the person, chopping off his arm. Other ways of impor- 



Equality, Envy, Exploitation, Etc. 


269 


tantly affecting the lives of others are within the rights of the af- 
fecter. If four men propose marriage to a woman, her decision 
about whom, if any of them, to marry importantly affects each of 
the lives of those four persons, her own life, and the lives of any 
other persons wishing to marry one of these four men, and so on. 
Would anyone propose, even limiting the group to include only 
the primary parties, that all five persons vote to decide whom she 
shall marry? She has a right to decide what to do, and there is no 
right the other four have to a say in the decisions which impor- 
tantly affect their lives that is being ignored here. They have no 
right to a say in that decision. Arturo Toscanini, after conducting 
the New York Philharmonic Orchestra, conducted an orchestra 
called the Symphony of the Air. That orchestra’s continued func- 
tioning in a financially lucrative way depended upon his being the 
conductor. If he retired, the other musicians would have to look 
for another job, and most of them probably would get a much less 
desirable one. Since Toscanini’s decision as to whether to retire 
would affect their livelihood significantly, did all of the musicians 
in that orchestra have a right to a say in that decision? Does 
Thidwick, the Big-Hearted Moose, have to abide by the vote of all 
the animals living in his antlers that he not go across the lake to 
an area in which food is more plentiful? 23 

Suppose you own a station wagon or a bus and lend it to a 
group of people for a year while you are out of the country. Dur- 
ing this year these people become quite dependent on your vehi- 
cle, integrating it into their lives. When at the end of the year you 
return, as you said you would, and ask for your bus back, these 
people say that your decision once more to use the bus yourself im- 
portantly affects their lives, and so they have a right to a say in de- 
termining what is to become of the bus. Surely this claim is 
without merit. The bus is yours; using it for a year improved their 
position which is why they molded their conduct around it and 
came to depend upon it. Things are not changed if they kept the 
bus in good repair and running order. Had the question arisen ear- 
lier, had it looked as though there might be such a right to a say, 
you and they would have agreed that a condition of lending the 
bus was that the decision about it after a year was solely yours. 
And things are no different if it is your printing press you have let 
them use for a year, which they have used to earn a better liveli- 



270 


Beyond the Minimal State? 


hood than they otherwise would have. Others have no right to a 
say in those decisions which importantly affect them that someone 
else (the woman, Toscanini, Thidwick, the bus owner, the print- 
ing press owner) has the right to make. (This is not to say that 
someone else, in making the decision he has a right to make, 
shouldn’t take into account how it affects others.) * After we ex- 
clude from consideration the decisions which others have a right to 
make, and the actions which would aggress against me, steal from 
me, and so on, and hence violate my (Lockean) rights, it is not 
clear that there are any decisions remaining about which even to 
raise the question of whether I have a right to a say in those that 
importantly affect me. Certainly, if there are any left to speak 
about, they are not significant enough a portion to provide a case 
for a different sort of state. 

The example of the loaned bus also serves against another prin- 
ciple sometimes put forth: that enjoyment and use and occupancy 
of something over a period of time gives one a title or right over 
it. Some such principle presumably underlies rent-control laws, 
which give someone living in an apartment a right to live in it at 
(close to) a particular rent, even though the market price of the 
apartment has increased greatly. In a spirit of amity, I might 
point out to supporters of rent-control laws an even more efficient 
alternative, utilizing market mechanisms. A defect of rent-control 
laws is that they are inefficient; in particular they misallocate 
apartments. Suppose I am living in an apartment for some period 
of time at a rent of $100 per month, and the market price goes up 
to $200. Under the rent-control law, I will sit tight in the apart- 
ment at $100 per month. But it might be that you are willing to 
pay $200 per month for the apartment; furthermore, it might well 
be that I would prefer giving up the apartment if I could receive 
$200 a month for it. I would prefer to sublet the apartment to 
you, paying $1,200 rent to the owner and receiving $2,400 in 
rent from you for the apartment per year, and I would take some 
other apartment available on the market, renting at say $150 per 

* Similarly, if someone starts a private “town” on land whose acquisition did 
not and does not violate the Lockean proviso, persons who chose to move there or 
later to remain there would not have a right to a say in how the town was run, 
unless it was granted them by the decision procedures for the “town” which the 
owner had established. 



Equality, Envy, Exploitation, Ecc. 


271 


month. This would give me $50 extra per month to spend on 
other things. Living in the apartment (paying $100 per month for 
it) isn’t worth to me the cash difference between its market value 
and its controlled rent. If I could get this difference, I would be 
willing to give up the apartment. 

This is very easily arranged, if I am allowed freely to sublet the 
apartment at the market rate, for as long as I wish. I am better off 
under such an arrangement than under the rent-control laws with- 
out the subletting provision. It gives me an extra option, though 
it doesn’t force me to use it. You are better off, since you get the 
apartment for $200, which you’re willing to pay, whereas you 
wouldn’t get it under the rent-control law with no subletting 
provision. (Perhaps, during the period of your lease, you may 
sublet it to yet another person.) The owner of the building is not 
worse off, since he receives $1,200 per year for the apartment in 
either case. Rent-control laws with subletting provisions allow 
people to improve their position via voluntary exchange; they are 
superior to rent-control laws without such provisions, and if the 
latter is better than no rent control at all, then a fortiori so is rent 
control with subletting allowed. So why do people find the sublet- 
ting-allowed system unacceptable?* Its defect is that it makes ex- 
plicit the partial expropriation of the owner. Why should the 
renter of the apartment get the extra money upon the apartment’s 
being sublet, rather than the owner of the building? It is easier to 
ignore the question of why he should get the subsidy given him by 
the rent-control law, rather than this value’s going to the owner 
of the building. 


THE NONNEUTRAL STATE 

Since inequalities in economic position often have led to inequali- 
ties in political power, may not greater economic equality (and a 
more extensive state as a means of achieving it) be needed and jus- 
tified in order to avoid the political inequalities with which eco- 

* There is some chance the resident would vacate anyway, and so the next 
tenant would pay less rent than under the subletting arrangement. So suppose 
the subletting allowance could be restricted only to those who otherwise would 
remain. 



272 


Beyond the Minimal State? 


nomic inequalities are often correlated? Economically well-off per- 
sons desire greater political power, in a nonminimal state, because 
they can use this power to give themselves differential economic 
benefits. Where a locus of such power exists, it is not surprising 
that people attempt to use it for their own ends. The illegitimate 
use of a state by economic interests for their own ends is based upon 
a preexisting illegitimate power of the state to enrich some persons 
at the expense of others. Eliminate that illegitimate power of giv- 
ing differential economic benefits and you eliminate or drastically 
restrict the motive for wanting political influence. True, some per- 
sons still will thirst for political power, finding intrinsic satisfac- 
tion in dominating others. The minimal state best reduces the 
chances of such takeover or manipulation of the state by persons 
desiring power or economic benefits, especially if combined with a 
reasonably alert citizenry, since it is the minimally desirable target 
for such takeover or manipulation. Nothing much is to be gained 
by doing so; and the cost to the citizens if it occurs is minimized. 
To strengthen the state and extend the range of its functions as a 
way of preventing it from being used by some portion of the popu- 
lace makes it a more valuable prize and a more alluring target for 
corrupting by anyone able to offer an officeholder something de- 
sirable; it is, to put it gently, a poor strategy. 

One might think that the minimal state also is nonneutral with 
regard to its citizens. After all, it enforces contracts, prohibitions 
on aggression, on theft, and so on, and the end result of the opera- 
tion of the process is one in which people’s economic situations 
differ. Whereas without these enforcements (or with some others) 
the resulting distribution might differ, and some people’s relative 
positions might be reversed. Suppose it were in some people’s in- 
terests to take or seize the property of others, or expropriate them. 
By using or threatening to use force to prevent this, isn’t the 
minimal state in fact rendered nonneutral? 

Not every enforcement of a prohibition which differentially 
benefits people makes the state nonneutral. Suppose some men are 
potential rapists of women, while no women are potential rapists 
of men or of each other. Would a prohibition against rape be non- 
neutral? It would, by hypothesis, differentially benefit people; but 
for potential rapists to complain that the prohibition was nonneu- 
tral between the sexes, and therefore sexist, would be absurd. 



Equality, Envy, Exploitation, Etc. 


273 


There is an independent reason for prohibiting rape: (the reason 
why) people have a right to control their own bodies, to choose 
their sexual partners, and to be secure against physical force and 
its threat. That a prohibition thus independently justifiable works 
out to affect different persons differently is no reason to condemn 
it as nonneutral, provided it was instituted or continues for (some- 
thing like) the reasons which justify it, and not in order to yield 
differential benefits. (How should it be viewed if it is indepen- 
dently justifiable, but actually is supported and maintained be- 
cause of its differential benefits?) To claim that a prohibition or 
rule is nonneutral presupposes that it is unfair. 

Similarly with the prohibitions and enforcements of the mini- 
mal state. That such a state preserves and protects a process that 
works out with people having different holdings would be suf- 
ficient to condemn it as nonneutral only if there were no indepen- 
dent justification for the rules and prohibitions it enforces. But 
there is. Or, at least, the person who claims the minimal state is 
nonneutral cannot sidestep the issue of whether its structure and 
the content of its rules is independently justifiable.* 

In this chapter and in the previous one we have canvassed the 
most important of the considerations that plausibly might be 


* Perhaps the view that the state and its laws are part of a superstructure 
thrown up by underlying relations of production and property contributes to 
thinking it is nonneutral. On such a view, the independent variable (substruc- 
ture) has to be specified without bringing in the dependent variable (superstruc- 
ture). But, it often has been noted, the “mode of production” includes how 
production is organized and directed, and therefore includes notions of prop- 
erty, ownership, right to control resources, and so on. The legal order which 
was supposed to be a superstructure phenomenon explainable by the underlying 
substructure is itself partially substructure. Perhaps the mode of production can 
be specified without introducing juridical notions by instead speaking only of 
(political science) notions like "control.” At any rate, to have concentrated on 
who actually controls resources might have saved the Marxist tradition from 
thinking that “public ownership" of the means of production would introduce a 
classless society. 

Even if the theory were correct which holds that there is a substructure 
which uniquely determines a superstructure, it doesn’t follow that parts of the 
superstructure aren’t independently justifiable. (Otherwise, familiar puzzles 
arise about the theory itself.) One then might proceed to think what kind of 
superstructure is justified, and work to institute a substructure which fits with 
it. (Just as, though germs cause disease symptons, we first decide how we want 
to feel, and then work to modify the causal substructure.) 



274 


Beyond the Minimal State? 


thought to justify a state more extensive than the minimal state. 
When scrutinized closely, none of these considerations succeeds in 
doing so (nor does their combination); the minimal state remains 
as the most extensive state that can be justified. 


HOW REDISTRIBUTION OPERATES 

Our normative task in these two chapters is now complete, but 
perhaps something should be said about the actual operation of re- 
distributive programs. It has often been noticed, both by propo- 
nents of laissez-faire capitalism and by radicals, that the poor in 
the United States are not net beneficiaries of the total of govern- 
ment programs and interventions in the economy. Much of gov- 
ernment regulation of industry was originated and is geared to 
protect the position of established firms against competition, and 
many programs most greatly benefit the middle class. The critics 
(from the right or the left) of these government programs have of- 
fered no explanation, to my knowledge, of why the middle class is 
the greatest net beneficiary. 

There is another puzzle about redistributive programs: why 
don’t the least well-off 51 percent of the voters vote for redistrib- 
utive policies that would greatly improve their position at the ex- 
pense of the best-off 49 percent? That this would work against 
their own long-run interests is true, but this does not ring true as 
the explanation of their refraining. Nor is an adequate explanation 
provided by referring to the lack of organization, political savvy, 
and so forth, in the bottom majority. So why hasn’t such massive 
redistribution been voted? The fact will seem puzzling until one 
notices that the bottom 51 percent is not the only possible (con- 
tinuous) voting majority; there is also, for example, the top 51 
percent. Which of these two majorities will form depends on how 
the middle 2 percent votes. It will be in the interests of the top 49 
percent to support and devise programs to gain the middle 2 per- 
cent as allies. It is cheaper for the top 49 percent to buy the support 
of the middle 2 percent than to be (partially) expropriated by the 
bottom 5 1 percent. The bottom 49 percent cannot offer more than 
the top 49 percent can to the middle 2 percent in order to gain 
them as allies. For what the bottom 49 percent offers the middle 2 



Equality, Envy, Exploitation, Etc. 


2 75 


percent will come (after the policies are instituted) from the top 49 
percent; and in addition the bottom 49 percent also will take 
something for themselves from the top 49 percent. The top 49 
percent always can save by offering the middle 2 percent slightly 
more than the bottom group would, for that way they avoid also 
having to pay to the remainder of the possible coalition of the bot- 
tom 51 percent, namely the bottom 49 percent. The top group 
will be able always to buy the support of the swing middle 2 
percent to combat measures which would more seriously violate 
its rights. 

Of course, speaking of the middle 2 percent is much too precise; 
people do not know precisely in what percentile they fall, and 
policies are not easily geared to target upon 2 percent somewhere 
in the middle. One therefore would expect that a middle group 
considerably larger than 2 percent will be a beneficiary of a voting 
coalition from the top. * A voting coalition from the bottom won’t 
form because it will be less expensive to the top group to buy off 
the swing middle group than to let it form. In answering one 
puzzle, we find a possible explanation of the other often noticed 
fact: that redistributive programs mainly benefit the middle class. 
If correct, this explanation implies that a society whose policies 
result from democratic elections will not find it easy to avoid hav- 
ing its redistributive programs most benefit the middle class. + 

* If others count on the bottom economic group to vote proportionally less, 
this will change where the middle swing group of voters is located. It therefore 
would be in the interests of those just below the currently benefiting group to 
support efforts to bring out the vote in the lowest group, in order to enter the 
crucial swing group themselves. 

t We can press the details of our argument further. Why won’t a coalition 
form of the middle 51 percent (the top 7 5 1/2 percent minus the top 24^2 per- 
cent)? The resources to pay off this whole group will come from the top 24 Vi 
percent, who will be worse off if they allow this middle coalition to form, than 
if they buy off the next 26V2 percent to form a coalition of the top 5 1 percent. 
The story differs for those in the top 2 percent but not in the top 1 percent. 
They will not try to enter a coalition with the next 50 percent, but will work 
with the top 1 percent to stop a coalition from forming that excludes both of 
them. When we combine a statement about the distribution of income and 
wealth with a theory of coalition formation, we should be able to derive a precise 
prediction about the resulting income redistribution under a system of majority 
rule. The prediction is broadened when we add the complications that people 
don’t know their precise percentile and that the feasible redistributive instru- 
ments are crude. How closely will this modified prediction fit the actual facts? 



Demoktesis 


▼ ▼ E have justified the minimal state, overcoming indi- 
vidualist anarchist objections, and have found all of the major 
moral arguments for a more extensive or powerful state inade- 
quate. Despite this, some readers will continue to find the mini- 
mal state frail and insubstantial . 1 Robustness, in their view, 
would consist of some asymmetry in rights between the (individ- 
uals jointly composing the) state and an individual who remains in 
a state of nature with respect to it (and them). Furthermore, a 
robust state would have more power and a larger legitimate do- 
main of action than defensive functions. There is no legitimate way 
to arrive at the asymmetry in rights. Is there some way to continue 
our story of the origin of the (minimal) state from the state of na- 
ture to arrive, via only legitimate steps which violate no one’s 
rights, at something more closely resembling a modern state? 2 
Were such a continuation of the story possible, it would illumi- 
nate essential aspects of the more extensive states people every- 
where now live under, laying bare their nature. I shall offer a 
modest effort in that direction. 


276 



Demoktesis 


277 


CONSISTENCY AND PARALLEL EXAMPLES 

But first something must be said about the difficulties in convinc- 
ing someone to change his evaluation of a case by producing a par- 
allel example. Suppose that you are trying to convince me to 
change my evaluation of a case in this way. If your parallel ex- 
ample is not close, I can accept your evaluation of it while main- 
taining my original evaluation of the case in question. The closer 
the parallel example, the more will I be prone to see it through the 
filter of my original evaluation. (‘‘That’s not so bad after all, for 
it’s just like. . . .”) There is a similar difficulty with deductive 
arguments, because a person can reject one of the premisses he 
previously accepted rather than accept an unwelcome conclusion; 
but the difficulty often is less pressing. For a long chain of deduc- 
tive reasoning enables one to start considerably far off, with prem- 
isses the person is sure of and won’t see through the filter of his 
rejection of the conclusion. Whereas an example, to be a convinc- 
ing parallel, must be very close by. (Of course, the longer the 
chain of reasoning the more prone the person will be to doubt that 
the conclusion does follow; and a person can reconsider his accep- 
tance of statements after he sees what follows from them.) 

You might try to isolate my judgment or evaluation about your 
starting place from my judgment or evaluation of the thing to be 
affected (thereby achieving the effect of a long chain of reasoning) 
by presenting a chain of examples. You begin with an example far 
off and step by step arrive at one exactly parallel in structure to the 
one under dispute. The challenge would be for me, who agrees 
with you about the far-off initial example (whose distance from the 
case in question has isolated it from the contamination of being 
seen through that case’s perspective), to explain where and why, in 
the step-by-step sequence of pairwise similar examples, I change 
my judgment. But such challenges to draw the line rarely con- 
vince anyone. (“It’s a problem to draw the line, I admit, but 
wherever it gets drawn it must be on the other side of my clear 
judgment about the case in question.”) 

Your strongest case would be made by an exactly parallel ex- 
ample that was glowingly clear in its own right, so my initial 
judgment about it wouldn’t be shaped or controverted by my 



278 


Beyond the Minimal State? 


judgment about the case under dispute. It is enormously difficult 
to find such lovely examples. Even with one, you would face the 
task of explaining wherein it differs from its parallel (under dis- 
pute), so that I make one judgment about it and another about the 
parallel; and also the task of showing that this difference does not 
make the cases, for the purposes of the argument, wow parallel . 3 

There is a more general puzzle about consistency arguments 
which lean heavily on the question, “How do you distinguish this 
case from that?” Philosophers of science often claim that for any 
given body of data there are an infinite number of possible expla- 
nations; for the explanatory relation E and any body of data d, an 
infinite number of alternative potential explanations stand in the 
relation E to d. We shall not linger long over why this is said. (Is 
it really enough merely to say that through any finite number of 
points an infinite number of different curves can be drawn?) There 
has not, to my knowledge, been any argument presented to show 
that for each body of data there exists at least one explanation, 
much less an infinite number! It is difficult to know whether the 
claim is true (one would like to see it proven as a theorem) in the 
absence of an adequate account of the relation E. If all we yet 
possess are necessary conditions for E, perhaps the imposition of 
further conditions to attain sufficiency will so restrict E that there 
won’t be an infinite number of things standing in E to d. (Though 
perhaps there is a general argument to show how one can always 
get new things standing in E to d, out of old ones that so stand, 
without repetitions, on any plausible construal of E . ) 

The usual conditions on explanation require that what stands in 
E to d essentially contain some lawlike or theoretical statement. In 
the moral case, what correspond to lawlike statements are moral 
principles. Isn’t it equally plausible (or implausible) to suppose 
that any given set of particular moral judgments can be accounted 
for by an infinite number of alternative moral principles (not all of 
them correct)? The usual requirement that moral principles not 
contain proper names, indexical expressions, and so on, corre- 
sponds to the requirement of the philosopher of science that fun- 
damental lawlike statements not contain positional predicates . 4 
The hope of using generalization conditions to reach the result 
that only one general moral principle is compatible with a large 
number of particular moral judgments seems akin to supposing 



Demoktesis 


279 


that only one fundamental lawlike statement would account for a 
given body of data. And, hoping to shift someone off a particular 
moral judgment by challenging him to distinguish it from another 
judgment he refuses to make, that is to reconcile it with the op- 
posite judgment he makes, seems akin to supposing that for some 
logically consistent body of data there is no fundamental lawlike 
statement or set of fundamental lawlike statements that would ac- 
count for it. 

These suppositions are very strong and go far beyond anything 
anyone has shown. What then can anyone hope to prove by gener- 
alization arguments in ethics? More plausible than the belief that 
no fundamental moral statement at all (satisfying generalization 
conditions) accounts for both of the judgments a person makes is 
the belief that no fundamental moral statement does so which uses 
only concepts available to that person. And one may think one 
reasonably can demand, if not that the person come up with the 
fundamental moral statement which accounts for his judgments, at 
least that there he one in his moral universe; that is, one using only 
his moral concepts. There is no guarantee that this will be so; and 
it is plausible to claim that he may not merely reply: “Well, some 
moral genius could think up new moral concepts and theoretical 
terms, as yet undreamt of, and in terms of them account for all of 
my particular judgments via only fundamental principles.” One 
would have to explain and explore the reasons why a person cannot 
just rest content with the belief that some fundamental moral law 
or laws (using some concepts or other) account for all of his judg- 
ments. This would appear to be a manageable task. 

The difficulties about parallel examples mentioned above apply 
to our current procedure. In the probably vain hope that some- 
thing can be done about the contamination of judgment when one 
case is seen through a settled view about another, I ask the reader 
to catch and check himself if he finds himself thinking, “But 
that’s not so bad, because it’s just like. ...” Now for the deriva- 
tion of a more extensive state from our minimal one. 



28 o 


Beyond the Minimal State? 

THE MO RE-TH AN-M I N IM AL STATE 
DERIVED 

In the state of nature, property is acquired initially, let us sup- 
pose, in accordance with the principle of justice in acquisition, 
and thereafter in accordance with the principle of justice in trans- 
fer, by exchange of owned property for owned property or for ser- 
vices or commitments, or by means of gifts. Perhaps the precise 
contour of the bundle of property rights is shaped by consider- 
ations about how externalities may be most efficiently internalized 
(with minimum cost, and so on ). 5 This notion merits some exami- 
nation. The property rights of others internalize negative ex- 
ternalities of your activities insofar as you are required to compen- 
sate these others for your activities’ effects on their property; your 
property rights internalize positive externalities of your activities 
insofar as these activities raise the value of things that you can first 
acquire property rights in. Given boundaries drawn, we can see, 
roughly and abstractly, what a system that internalized all nega- 
tive externalities would be like. What, though, would the full in- 
ternalization of all positive externalities involve? In its strong 
form, it would involve your (each person’s) receiving the full bene- 
fits of your (his) activities to others. Since benefits are hard to 
create, let us imagine this involves the transfer of benefits from 
others to you, returning the others to the same indifference curve 
they would have occupied if not for your activities. (In the absence 
of unrestrictedly transferrable utility, there is no guarantee that 
this internalization will lead to the agent’s receiving the same 
amount of benefit as the recipient would have without this in- 
ternalization.) At first, it strikes one that such strong internaliza- 
tion would eliminate all benefits of living in society with others; 
for each benefit you receive from others is removed and transferred 
(insofar as possible) back to these others. But since people will 
desire receiving this payback for benefits rendered, in a free society 
there will be competition among people to provide benefits for 
others. The resulting market price for providing these benefits will 
be lower than the highest price the recipient would be willing to 
pay, and this consumers’ surplus would be a benefit of living in a 
society with others. Even if the society were not free and did not 



Demoktesis 


281 


allow price competition among potential providers of a benefit 
(but instead used some other selection device to determine who 
would provide the benefit) there still would be benefit to living in 
a society with others. In each situation of full payback for benefits 
received, there also is full receipt for benefits provided to others. 
So the advantages of living in society under this scheme would not 
be the benefits others provide you, but rather the payback they 
give you for the benefits you provide them. 

Here, however, the scheme becomes incoherent if pushed to 
another level. For you benefit from living in a society where others 
repay you for the benefits you provide them. Is this benefit that the 
presence of others provides you to be internalized as well, so that 
you pay back fully for that? Do you, for example, pay back your 
expected payback from others? Clearly this question can be 
iterated an indefinite number of times, and since receiving pay- 
back is a benefit of coexisting with others, there can be no stable 
result of internalizing all positive externalities. Considerations 
about drawing forth the activities would lead to a system of person 
X’s paying back Y for “ordinary” benefits Y provides, instead of 
one in which Y pays X back for the benefits Y receives from X by 
X’s being present and paying Y under the “ordinary” system. For 
under the latter system the benefits would not get provided ini- 
tially. Also, since it rides piggyback on the “ordinary” one, it can- 
not replace it. In the absence of the “ordinary” system and its 
payback benefits, there is nothing for the latter system to operate 
upon. 

Economists’ discussions of internalizing positive externalities do 
not focus upon the strong principle of full payback of benefits. 
Rather, their concern is that there be more than sufficient payback 
to cover the costs to the agent of performing the activity with the 
positive externalities, so that the activity will be called forth. It is 
this weak form of payback, which suffices for economic efficiency, 
that constitutes the subject of the economic literature on in- 
ternalizing (positive) externalities. 

Returning to our derivation of a more-than-minimal state: peo- 
ple do not conceive of ownership as having a thing, but as possess- 
ing rights (perhaps connected with a thing) which are theoreti- 
cally separable. Property rights are viewed as rights to determine 
which of a specified range of admissible options concerning some- 



282 


Beyond the Minimal State ? 


thing will be realized. Admissible options are those that do not 
cross another’s moral boundary; to reuse an example, one’s prop- 
erty right in a knife does not include the right to replace it be- 
tween someone else’s ribs against their will (unless in justified 
punishment for a crime, or self-defense, and so on). One person 
can possess one right about a thing, another person another right 
about the same thing. Neighbors immediately surrounding a 
house can buy the right to determine what color its exterior will 
be, while the person living within has the right to determine what 
(admissible thing) will happen inside the structure. Furthermore, 
several people can jointly possess the same right, using some deci- 
sion procedure to determine how that right would be exercised. As 
for people’s economic situation, the free operation of the market, 
some people’s voluntarily uniting (kibbutzim, and so on), private 
philanthropy, and so on, greatly reduces private destitution. But 
we may suppose it either' not wholly eliminated, or alternatively 
that some people are greatly desirous of even more goods and ser- 
vices. With all this as background, how might a state more exten- 
sive than the minimal one arise? 

Some of these people desirous of more money hit upon the idea 
of incorporating themselves, of raising money by selling shares in 
themselves. They partition the rights that until that time each 
person alone possessed over himself into a long list of discrete 
rights. These include the right to decide which occupation he 
would have a try at making a living in, the right to determine 
what type of clothing he would wear, the right to determine 
whom of those willing to marry him he would marry, the right to 
determine where he would live, the right to determine whether he 
would smoke marijuana, the right to decide which books he would 
read of all those others were willing to write and publish, and so 
on. Some of this vast array of rights these people continue to hold 
for themselves, as before. The others they place on the market; 
they sell separate shares of ownership in these particular rights 
over themselves. 

At first, solely as a joke or a novelty, people pay money to buy 
partial ownership of such rights. It becomes a fad to give another 
person gifts of ridiculous stock, either in oneself or in a third per- 
son. But even before the fad wears thin, others see more serious 
possibilities. They propose selling rights in themselves that might 



Demoktesis 


283 


be of real use or benefit to others: the right to decide from which 
persons they could buy certain services (which they call occupa- 
tional licensure rights); the right to decide what countries they 
would buy goods from (import-control rights); the right to decide 
whether or not they would use LSD, or heroin, or tobacco, or cal- 
cium cyclamate (drug rights); the right to decide what proportion 
of their income would go to various purposes independently of 
whether they approved of these purposes (tax rights); the right to 
determine their permitted mode and manner of sexual activity 
(vice rights); the right to decide when and whether they would 
fight against and kill whom (draft rights); the right to decide the 
range of prices within which they could make exchanges (wage- 
price-control rights); the right to decide what grounds were illegiti- 
mate in hiring or selling or renting decisions (antidiscrimination 
rights); the right to force them to participate in the operation of a 
judicial system (subpoena rights); the right to requisition bodily 
parts for transplantation in the more needy (physical equality 
rights); and so on. For various reasons of their own, other people 
want these rights or want to exercise a say in them, and so enor- 
mous numbers of shares are bought and sold, sometimes for con- 
siderable sums of money. 

Perhaps no persons completely sell themselves into slavery, or 
perhaps the protective associations do not enforce such contracts. 
At any rate, there are at most only a few complete slaves. Almost 
everyone who sells any such rights sells only enough to bring the 
total (though very extensive) up to ownership with some limits on 
its extent. Since there are some limits to the rights others hold in 
them, they are not completely enslaved. But many persons have 
the separate rights in themselves they put up for sale all bought up 
by one other individual or a small group. Thus even though there 
are some limits to the entitlement of the owner(s), considerable 
oppression is felt by these narrowly held people, subject to their 
shareholder’s desires. Since this very extensive domination of some 
persons by others arises by a series of legitimate steps, via volun- 
atry exchanges, from an initial situation that is not unjust, it itself 
is not unjust. But though not unjust, some find it intolerable. 

Persons newly incorporating themselves write into the terms of 
each stock the provision that it not be sold to anyone already own- 
ing more than a certain number of shares of that stock. (Since the 



284 


Beyond the Minimal State ? 

more restrictive the conditions, the less valuable the stock, the 
number set is not very low.) Over time many of the original small 
holding companies in a person disintegrate, either because the 
owners sell their shares in scattered fashion when in economic 
need, or because many persons buy shares in the holding compa- 
nies so that at the level of ultimate ownership there is enlarged 
and more widely dispersed shareholding in the person. As time 
goes on, for one reason or another just about everyone sells off 
rights in themselves, keeping one share in each right as their own, 
so they can attend the stockholders’ meeting if they wish. (Given 
the minuscule power of their vote at these meetings, and the inat- 
tention with which their occasional speeches are heard, perhaps it 
is solely for reasons of sentiment that they retain shares in them- 
selves.) 

The enormous number of shares held and the dispersal in own- 
ership of these shares leads to considerable chaos and inefficiency. 
Large stockholder meetings are constantly being held to make the 
varied decisions now subject to external determination: one about 
a person’s hairstyle, another about his lifestyle, another about 
another’s hairstyle, and so on. Some people spend most of their 
time attending stockholders’ meetings or signing proxies over to 
others. Division of labor creates the special occupation of stock- 
holders’ representative, persons who spend all of their time at dif- 
ferent meetings. Various reform movements, called “consolidation 
movements,’’ come into being; two sorts are tried widely. There 
are the individual consolidating stockholders’ meetings in which 
all who own any sort of stock in any right over some particular 
specified person meet together to vote. They vote one question at a 
time, with only those eligible on each question voting. (This con- 
solidation increases efficiency because people who own some share 
in any right in a particular person tend to own shares in other 
rights in him as well.) Also there are the consolidated share- 
holders’ meetings in which all persons holding shares in a given 
right in anyone meet together and vote; for example, the drug 
conventions, with votes taken on each person consecutively. (The 
increased efficiency here is gotten because people who buy a share 
of a particular right in one person tend to acquire shares in the 
same right in other persons.) Still, even with all of these consoli- 
dations it is an impossibly complex situation, taking inordinate 



Demoktesis 


285 


time. People try to sell off shares, holding onto one of a kind, “to 
have some say” as they put it. As people try to sell, the price of 
each share drops drastically, leading others to buy token shares of 
rights they don’t yet hold. (Such shares are traded like baseball 
cards, with people trying to amass complete collections. Children 
are encouraged to collect as a way of preparing them for their fu- 
ture role of shareholder.) 

This great dispersal of shares essentially ends the domination of 
one person by another identifiable person or small group. People are no 
longer under the thumb of one another. Instead almost everybody 
is deciding about them, and they are deciding about almost every- 
body. The extent of the powers others hold over an individual is 
not reduced; the change is in who holds it. 

The system at this point is still much too time-consuming and 
unwieldy. The remedy is a great consolidational convention. Ev- 
eryone gathers from far and wide, trading and selling shares, and 
by the end of a hectic three days (lo and behold!) each person owns 
exactly one share in each right over every other person, including 
himself. So now there can be just one meeting in which everything 
is decided for everybody, one meeting in which each person casts 
one vote, either by himself or by giving his proxy to another. In- 
stead of taking up each person singly, general decisions are made 
for everyone. At first each person can attend the triannual stock- 
holders’ meeting and cast his votes: his own plus any he may have 
been given in proxy. But the attendance is too great, the discus- 
sion too boring and drawn out with everyone wanting to add his 
words. Eventually it is decided that only those entitled to cast at 
least 100,000 votes may attend the grand stockholders’ meeting. 

A major problem is how the children are to be included. A 
Great Corporation Share is a valuable and treasured holding, with- 
out which one is an isolated nonstockholder, powerless over oth- 
ers. For children to wait until their parents die so they could in- 
herit shares would leave these children shareless for most of their 
adult lives. And not every family contains exactly two children. 
Shares cannot just he given to a youngster. Whose would be given, 
and would it be fair just to give away Great Corporation Shares 
when others had bought theirs? So splitting is introduced as a way 
of allowing young people to enter the guild of stockholders. In the 
time since each previous triannual stockholders’ meeting, m stock- 



286 


Beyond the Minimal State ? 

holders have died and n persons have come of age. The m shares 
revert to the Board of Directors and are retired, and each of the s 
remaining shares outstanding splits (s +n)/s for one, with the frac- 
tions being merged to form n new shares that are distributed to 
the entering youngsters. These are not distributed to them gratis 
(that would be unfair) but in exchange for their incorporating 
themselves and signing over all of the stock in themselves to the 
corporation. In exchange for the stock in themselves, they each re- 
ceive a Great Corporation Share and become a member of the guild 
of stockholders, a sharer by right in the joint decisions of the cor- 
poration, a part-owner of each other person. Each old stock is in a 
position to split because the influx of new persons who join the 
guild means that each stock is a share in more people. So the peo- 
ple joining and the stock splitting justify each other. 

People view the exchange as an absolutely even trade. Before the 
exchange a person has one full share in himself, and not even a 
partial share in any other person. With r + n — i other individuals 
(to use the same letters as before) in the society, each person in- 
corporates himself into s+n shares, signing over each of these 
shares to the Board of Directors. In exchange for this he gets a 
i Is +«th share in each of the other s + » — i persons in the society, 
plus the same share in himself. Thus he has s+n shares each 
representing i/s +«th ownership in each of the s +n individuals in 
the society. Multiplying the number of shares he holds by the frac- 
tion of ownership in someone that each share represents we get 
(r + ») (i Is + n), which is equal to i. What he ends up with from 
the exchange totals to one full ownership, which is exactly what he 
signs over to the Board of Directors for it. People say, and think, 
that when everybody owns everybody, nobody owns anybody . 6 
Each person believes that each other person is not a tyrant but 
rather someone just like himself, in exactly the same position. 
Since everyone is in the same boat, no one views the situation as 
one of domination; the large number of passengers in that boat 
make it more tolerable than a one-person rowboat. Since the deci- 
sions apply to all equally, one gets (it is said) the rule of imper- 
sonal and nonarbitrary regulations rather than the rule of men. 
Each person is thought to benefit from the efforts of the others to 
rule wisely over all, and each is an equal in this endeavor, having 
an equal say with the others. Thus is established the system of one 



Demoktesis 


287 


shareholder, one vote. And perhaps fraternal feelings flourish as 
people realize that they all are inextricably intertwined, each 
equally shareholder and shareheld, each his brothers’ keeper and 
his brothers’ kept. 

Occasionally some few malcontents refuse to accept their Great 
Corporation Shares and refuse to sign the stockholders’ guild Scroll 
of Membership. Refusing to put their John Hancocks on the Dec- 
laration of Interdependence, they say they want no part of the sys- 
tem and refuse to grant the system any part of them. Several of 
them go so far as to call for the dismantling of the corporation! 
Hotheads on the Board of Directors call for their incarceration, but 
in view of the youngsters’ noncooperation it seems that they 
haven’t yet granted the Board the explicit right to do that. Some 
members of the Board maintain that by accepting the benefits of 
growing up under the wing of the corporation and by remaining 
in its area of influence, the youngsters have already tacitly consented 
to be shareheld, and so no further act from them is needed. But 
since everyone else realizes that tacit consent isn’t worth the paper 
it’s not written on, that claim commands little support. One 
member of the Board says that, since all children are made by their 
parents, their parents own them and so the Board’s ownership 
shares in the parents thereby give it ownership shares in the chil- 
dren. The novelty of this line militates against its use at such a 
delicate moment. 

We slow the dramatic pace of our tale in order to consider 
Locke’s views on parental ownership of children. 7 Locke must 
discuss Filmer in detail, not merely to clear the field of some alter- 
native curious view, but to show why that view doesn’t follow 
from elements of his own view, as one might suppose it did. That is 
why the author of the Second Treatise goes on to compose the First . 8 
Ownership rights in what one has made would seem to follow 
from Locke’s theory of property. Hence Locke would have a real 
problem if God who made and owned the world gave Adam sole 
ownership in it. Even though Locke thought and argued that this 
hadn’t happened (chap. 4), he also must have wondered what the 
consequences would be if it had happened. He must have won- 
dered if his views would entail that if it had then others would 
need Adam’s permission to use his property to sustain themselves 
physically and so would be within his power. (If so and if a gift 



Beyond the Minimal State ? 


288 

can be bequeathed then. . . .) Views whose satisfactory result (no 
domination of some by others) depends upon a contingency which 
could have been otherwise (no such gift by God to Adam) should 
leave someone holding them very uncomfortable. (I ignore here 
the reply that God is necessarily good and so his not making such 
a gift is not contingent. A moraL view which must take that route 
to avoid being overthrown by facts that look accidental is very 
shaky indeed.) Thus Locke discussed (I, sects. 41, 42) an essential 
element of his theory when he speaks of every man’s “title to so 
much out of another’s plenty, as will keep him from extreme 
want, where he has no means to subsist otherwise,” which the 
other may not withhold. 

Similarly Locke must explain "why parents don’t own their chil- 
dren. His major argument (I, sects. 52—54) seems to depend upon 
the view that one owns something one makes only if one controls 
and understands all parts of the process of making it. By this crite- 
rion, people who plant seeds on their land and water them would 
not own the trees that then grow. Surely most of what most of us 
do is to intervene in or originate processes whose complete opera- 
tion we do not understand, yieLding a result we could not com- 
pletely design. (Who knows all of what physicists say is relevant 
to materials having the properties they do and to forces working as 
they do; and who knows what the physicists don’t know?) Yet in 
many such cases, Locke does want to say that we own what we 
produce. 

Locke offers a second argument: “Even the power which God 
himself exerciseth over mankind is by right of fatherhood, yet this 
fatherhood is such a one as utterly excludes all pretense of title in 
earthly parents; for he is King because he is indeed maker of us 
all, which no parents can pretend to be of their children” (I, sect. 
54). It is difficult to puzzle this out. If the point is that people 
cannot own their children because they themselves are owned and 
so incapable of ownership, this would apply to owning everything 
else they make as well. If the point is that God, far more than a 
child’s parents, is the maker of a child, this applies to many other 
things that Locke thinks can be owned (plants, nonhuman ani- 
mals); and perhaps it applies to everything. (The degree to which 
this holds seems an unsubstantial base upon which to build a 
theory.) Note that Locke is not claiming that children, because of 



Demoktesis 


289 


something about their nature, cannot be owned by their parents 
even if these make them. He does not claim that something about 
people (who have not done anything unjust for which their lives 
are forfeit, sects. 23, 178) bars ownership in them by their maker, 
for he holds that God owns man by virtue of making him in all his 
exalted natural properties (sect. 6). 

Since Locke does not hold that (1) something intrinsic to per- 
sons bars those who make them from owning them — to avoid the 
conclusion that parents own their children, he must argue either 
that (2) some condition within the theory of how property rights 
arise in productive processes excludes the process whereby parents 
make their children as yielding ownership, or (3) something about 
parents bars them from standing in the, or a particular, ownership 
relation, or (4) parents do not, really, make their children. We 
have seen problems with Locke’s attempt to work 2,3, and 4. The 
latter two being unpromising, someone of Lockean persuasion 
would have to work out a variant of 1 or 2 . 

Note that Locke’s strong denial that parents make their chil- 
dren, causing these beings, removes one base on which to found 
the responsibility of parents to care for their children. Thus Locke 
is reduced to saying that the law of nature requires such parental 
care (sect. 56), as a brute moral fact, apparently. But this leaves 
unexplained why it requires the cate from the parents, and why it 
isn’t another case of someone’s receiving “the benefit of another’s 
pains, which he had no right to” (sect. 34). 

Our tale now must be brought to a close. About the youngsters, 
it is decided they do not have to join the stockholders’ guild, after 
all. They can refuse its benefits and leave the corporation area, 
without any hard feelings. (But since no settlement has survived 
on Mars for more than six months there are strong reasons for 
remaining on earth and becoming a stockholder.) Those invited to 
love it or leave it respond by claiming that since the corpora- 
tion doesn’t own all the land, anybody can buy some land in the 
corporation area and live as they wish. Though the corporation 
hadn’t actually bought up all the land itself, the original cor- 
poration rules, adopted by everyone at the great consolidational con- 
vention, are viewed as prohibiting the secession of land from the 
corporation’s control. 9 Can the corporation, it is asked, allow an- 
other corporation to spring up in its midst? Can it tolerate the 



290 


Beyond the Minimal State? 


dangers of isolated nonstockheld individuals; in a word, ancorpy? 

Some suggest that the recalcitrant people be allowed to opt out 
of the corporation yet remain within the territory. Why shouldn’t 
they be allowed to stay in the midst of the corporation, choosing 
precisely those contacts with the corporation they wish to have, 
formulating their own personal package of rights and duties (above 
and beyond nonaggression) vis-a-vis other persons and the corpora- 
tion, paying for the particular things they receive, living indepen- 
dently? 10 

But others reply that this would be too chaotic; and that it also 
might undermine the corporate system. For others (“gullible oth- 
ers,” it is said) also might be tempted to resign from the guild of 
shareholders. And who would be left? Only those least able to fend 
for themselves. And who would take care of them? And how 
would those who did leave manage on their own? And would fra- 
ternity flourish as greatly without universal shareholding, and 
without all persons (able to do so) being forced to aid others? Al- 
most all view their historical experience as showing that this sys- 
tem of each person’s having an equal say (within some specified 
limits) in the lives of all others is the best and fairest imaginable. 
Their social theorists agree that their system of demoktesis, owner- 
ship of the people, by the people, and for the people, is the 
highest form of social life, one that must not be allowed to perish 
from the earth. 

In elaborating this eldritch tale we have arrived, finally, at what 
is recognizable as a modern state, with its vast panoply of powers 
over its citizens. Indeed, we have arrived at a democratic state. Our 
hypothetical account of how it might arise from a minimal state 
without any blatant violation of anyone’s rights through a series of 
individual steps each arguably unobjectionable has placed us in a 
better position to focus upon and ponder the essential nature of 
such a state and its fundamental mode of relationship among per- 
sons. For what it’s worth. 

Other tales, some of unjust origins, also might be told. Con- 
sider the following sequence of cases, which we shall call the Tale 
of the Slave, and imagine it is about you. 

1. There is a slave completely at the mercy of his brutal master’s 
whims. He often is cruelly beaten, called out in the middle of the 
night, and so on. 



Demoktesis 


291 


2. The master is kindlier and beats the slave only for stated infractions 
of his rules (not fulfilling the work quota, and so on). He gives the 
slave some free time. 

3. The master has a group of slaves, and he decides how things are to 
be allocated among them on nice grounds, taking into account their 
needs, merit, and so on. 

4. The master allows his slaves four days on their own and requires 
them to work only three days a week on his land. The rest of the 
time is their own. 

5. The master allows his slaves to go off and work in the city (or any- 
where they wish) for wages. He requires only that they send back to 
him three-sevenths of their wages. He also retains the power to 
recall them to the plantation if some emergency threatens his land; 
and to raise or lower the three-sevenths amount required to be 
turned over to him. He further retains the right to restrict the 
slaves from participating in certain dangerous activities that 
threaten his financial return, for example, mountain climbing, ciga- 
rette smoking. 

6. The master allows all of his 10,000 slaves, except you, to vote, and 
the joint decision is made by all of them. There is open discussion, 
and so forth, among them, and they have the power to determine to 
what uses to put whatever percentage of your (and their) earnings 
they decide to take; what activities legitimately may be forbidden 
to you, and so on. 

Let us pause in this sequence of cases to take stock. If the mas- 
ter contracts this transfer of power so that he cannot withdraw it, 
you have a change of master. You now have 10,000 masters in- 
stead of just one; rather you have one 10,000-headed master. 
Perhaps the 10,000 even will be kindlier than the benevolent mas- 
ter in case 2. Still, they are your master. However, still more can 
be done. A kindly single master (as in case 2) might allow his 
slave(s) to speak up and try to persuade him to make a certain 
decision. The 10,000-headed master can do this also. 

7. Though still not having the vote, you are at liberty (and are given 
the right) to enter into the discussions of the 10,000, to try to per- 
suade them to adopt various policies and to treat you and them- 
selves in a certain way. They then go off to vote to decide upon 
policies covering the vast range of their powers. 

8. In appreciation of your useful contributions to discussion, the 
10,000 allow you to vote if they are deadlocked; they commit 
themselves to this procedure. After the discussion you mark your 
vote on a slip of paper, and they go off and vote. In the eventuality 



292 


Beyond the Minimal State? 


that they divide evenly on some issue, 5,000 for and 5,000 against, 
they look at your ballot and count it in. This has never yet hap- 
pened; they have never yet had occasion to open your ballot. (A 
single master also might commit himself to letting his slave decide 
any issue concerning him about which he, the master, was abso- 
lutely indifferent.) 

9. They throw your vote in with theirs. If they are exactly tied your 
vote carries the issue. Otherwise it makes no difference to the elec- 
toral outcome. 

The question is: which transition from case 1 to case 9 made it 
no longer the tale of a slave? 11 


HYPOTHETICAL HISTORIES 

Might a more-than-minimal state arise through a process of boy- 
cott? People favoring such a state might refuse to deal or exchange 
or have social relations with those who don’t commit themselves to 
participate in that state’s additional apparatus (including the boy- 
cott of nonparticipants). The more who sign up pledging them- 
selves to boycott nonparticipants, the more restricted are the op- 
portunities to these nonparticipants. If the boycott works 
completely, all might end up choosing to participate in the addi- 
tional activities of the more-than-minimal state, and indeed might 
then give it permission to force them to do things against their 
will. 

Under this resulting arrangement, someone could refuse to enter 
or could opt out of the additional processes and constraints, if he 
was willing to face however effective a social boycott might be 
mounted against him; unlike a more-than-minimal state, where 
everyone is compelled to participate. This arrangement, which 
would mirror certain institutional features of a more-than-minimal 
state, illustrates how coordinated actions which people might 
choose can achieve certain results without any violation of rights. 
It is highly unlikely that in a society containing many persons, an 
actual boycott such as the one described could be maintained suc- 
cessfully. There would be many persons opposed to the additional 
apparatus who could find enough others to deal with, establish a 
protective agency with, and so on, so as to withstand the boycott 



Demoktesis 


293 


in an independent enclave (not necessarily geographical); further- 
more, they could offer incentives to some participants in the boy- 
cott to break it (perhaps secretly, to avoid the response of the 
others who continue to maintain it). The boycott would fail, with 
more leaving it as they see others doing so and profiting by it. 
Only if almost all in the society so adhere to the ideal of the more- 
than-minimal state as to welcome its additional restrictions and to 
resist personal gain to effectuate the boycott and are so con- 
cerned and involved as to continually mold their relations to 
achieve the goal will the analogue of the more-than-minimal state 
be established. It is only the analogue of the more-than-minimal 
state, under which each person retains the choice of whether to 
participate or not, that is legitimate; and only when it arises in the 
fashion described. 

How should hypothetical histories affect our current judgment 
of the institutional structure of a society? Let me venture some 
tentative remarks. If an existing society was led to by an actual 
history that is just, then so is that society. If the actual history of 
an existing society is unjust, and no hypothetical just history could 
lead to the structure of that society, then that structure is unjust. 
More complicated are the cases where the actual history of a soci- 
ety is unjust yet some hypothetical just history could have led to 
its current structure (though not perhaps to the particular dis- 
tribution of holdings or positions under it). If the hypothetical 
just history is “close” to the actual history, whose injustices played 
no significant role in bringing about or maintaining the institu- 
tional structure, the actual structure will be as just as one can ex- 
pect to get. 

If the hypothetical just history involves each person’s consenting 
to the institutional structure and to any limitations on his rights 
(specified by the moral side constraints on the behavior of others) 
it embodies, then if some actual person would not consent, one 
must view the institutional structure as unjust (unless it counts as 
just via some other hypothetical history). Similarly, one must hold 
the institutional structure unjust if the hypothetical just history 
involves some people’s consenting who didn’t, and some now 
would not assent to those others having done so. If the institu- 
tional structure could arise by some hypothetical just history 
which does not involve anyone’s consent to that structure, then 



294 


Beyond the Minimal State? 


one’s evaluation of the structure will depend upon one’s evaluation 
of the process which would give rise to it. If that process is viewed 
as better (along dimensions other than justice where, by hypothe- 
sis, it excels) than the actual history, this probably will improve 
one’s evaluation of the structure. That a just process would have led 
to the institutional structure, but only if manned by despicable in- 
dividuals, will not enhance one’s evaluation of that institutional 
structure. 

Since a structure that could arise by a just process which does 
not involve the consent of individuals will not involve limitations 
of their rights or embody rights which they do not possess, it will 
be closer, insofar as rights are concerned, to the starting point of in- 
dividual rights specified by moral side constraints; and hence its 
structure of rights will be viewed as just. Holding the injustice of 
their actual histories constant, institutional structures closer to the 
rights individuals possess in virtue of the moral side constraints 
will be more just than institutional structures more distant. If an 
institutional structure embodying only individual rights can arise 
»»justly, one will be willing to stick with such a one even if it did 
(rectifying particular injustices of position and holding) and let it 
be transformed into whatever other institutional structure arises 
out of it. Whereas if an institutional structure diverges from the 
individual rights embodied in the moral side constraints, one will 
not be willing to let it continue to operate, even if it could have 
arisen via some hypothetical just history; for the current limita- 
tions on rights will significantly affect what arises out of it, and 
perhaps even those existing limitations would not be consented to. 
The situation of individual rights will have to be reestablished. 



PART 

III 


U topia 




CHAPTER 

10 


A Framework for Utopia 


N O state more extensive than the minimal state can be jus- 
tified. But doesn’t the idea, or ideal, of the minimal state lack lus- 
ter? Can it thrill the heart or inspire people to struggle or sacri- 
fice? Would anyone man barricades under its banner? 1 It seems 
pale and feeble in comparison with, to pick the polar extreme, the 
hopes and dreams of utopian theorists. Whatever its virtues, it ap- 
pears clear that the minimal state is no utopia. We would expect 
then that an investigation into utopian theory should more than 
serve to highlight the defects and shortcomings of the minimal 
state as the end of political philosophy. Such an investigation also 
promises to be intrinsically interesting. Let us then pursue the 
theory of utopia to where it leads. 


THE MODEL 

The totality of conditions we would wish to impose on societies 
which are (preeminently) to qualify as utopias, taken jointly, are 
inconsistent. That it is impossible simultaneously and continually 
to realize all social and political goods is a regrettable fact about 
the human condition, worth investigating and bemoaning. Our 


297 



298 


Utopia 


subject here, however, is the best of all possible worlds.* For 
whom? The best of all possible worlds for me will not be that for 
you. The world, of all those I can imagine, which I would most 
prefer to live in, will not be precisely the one you would choose. 
Utopia, though, must be, in some restricted sense, the best for all 
of us; the best world imaginable, for each of us.+ In what sense 
can this be? 

* There is an ambiguity in the notion of the best possible world. Corre- 
sponding to the different decision criteria discussed by decision theorists are dif- 
ferent principles of institutional design. The talk of designing institutions so 
that bad men at their head can do little harm, and of checks and balances, can 
be interpreted as prompted by a minimax principle, or, more accurately, by 
minimax considerations built into a less stringent principle. [See Kenneth 
Arrow and Leonid Hurwicz, “An Optimality Criterion for Decision-Making 
Under Ignorance,” in Uncertainty and Expectations in Economics, ed. C. F. Carter 
and J. L. Ford (Clifton, N.J.: Augustus M. Kelley, 1972), pp. 1— 11.] Every- 
one who has considered the matter agrees that the maximax principle, which 
chooses the action that has of its many possible consequences one which is bet- 
ter than any possible consequence of any other available action, is an insuf- 
ficiently prudent principle which one would be silly to use in designing institu- 
tions. Any society whose institutions are infused by such wild optimism is 
headed for a fall or, at any rate, the high risk of one makes the society too dan- 
gerous to choose to live in. 

But a society which does not have its institutions patterned by maximax 
principles will not be able to reach the heights reachable (if things go well for 
it) by a maximax society. Which society is the best possible? That in accordance 
with the “best” principles of institutional design (which build in certain safe- 
guards against bad eventualities at a cost of making some good ones more dif- 
ficult of quick attainment) or that one of the possible ones in which things turn 
out best: the maximax society in which the most favorable eventuality is real- 
ized? Perhaps no one’s notion of utopia is precise enough to say which way this 
question is to be answered. Utopia to the side, the question that interests us 
here concerns the best principles of institutional design. (Perhaps, so as not to 
imply that it is possible or desirable to create major institutions de now, we 
should speak of principles of institutional evaluation, rather than of design.) 

t That my best world is not yours will seem to some to show the corrup- 
tion and degeneracy of at least one of us. And not surprisingly, in their view, 
for we haven't been brought up in, and shaped by, utopia. So how could we be 
expected to be its perfect inhabitants? Hence the emphasis in utopian writings 
on the various processes of molding the young. Those people will find it utopia. 
By how much may they differ from us? Presumably, a short nice history should 
lead from people like us to people like them. Utopia is where our grandchildren 
are to live. And the double generation gap is to be small enough so that we all 
happily realize we are part of the same family. People are not to be transformed. 
The ape description of their utopia does not begin “First we evolve and then 
. . .” nor “First we start to like tomatoes and crawling on the ground, and 
then. ...” 



A Framework for Utopia 


299 


Imagine a possible world in which to live; this world need not 
contain everyone else now alive, and it may contain beings who 
have never actually lived. Every rational * creature in this world 
you have imagined will have the same rights of imagining a possi- 
ble world for himself to live in (in which all other rational inhabi- 
tants have the same imagining rights, and so on) as you have. The 
other inhabitants of the world you have imagined may choose to 
stay in the world which has been created for them (they have been 
created for) or they may choose to leave it and inhabit a world of 
their own imagining. If they choose to leave your world and live 
in another, your world is without them. You may choose to aban- 
don your imagined world, now without its emigrants. This process 
goes on; worlds are created, people leave them, create new worlds, 
and so on. 

Will the process go on indefinitely? Are all such worlds ephe- 
meral or are there some stable worlds in which all of the original 
population will choose to remain? If this process does result in 
some stable worlds, what interesting general conditions does each 
of them satisfy? 

If there are stable worlds, each of them satisfies one very desir- 
able description by virtue of the way the worlds have been set up; 
namely, none of the inhabitants of the world can imagine an alterna- 
tive world they would rather live in, which (they believe) would 
continue to exist if all of its rational inhabitants had the same 
rights of imagining and emigrating. This description is so very at- 
tractive thlat it is of great interest to see what other features are 
common to all such stable worlds. So that we continually do not 
have to repeat long descriptions, let us call a world which all ration- 
al inhabitants may leave for any other world they can imagine (in 
which all the rational inhabitants may leave for any other world 
they can imagine in which . . .) an association; and let us call a 
world in which some rational inhabitants are not permitted to em- 
igrate to some of the associations they can imagine, an east-berlin. 
Thus our original attractive description says that no member of 
a stable association can imagine another association, which (he 

* I use “rational” or “rational creature” as short for beings having those 
properties in virtue of which a being has those full rights that human beings 
have; I do not mean here to say anything about what those properties are. Some 
brief introductory remarks on the issue are contained in Chapter 3. 



300 


Utopia 


believes) would be stable, that he would rather be a member of. 

What are such stable associations like? Here I can offer only 
some intuitive and overly simple arguments. You will not be able 
to set up an association in which you are the absolute monarch, 
exploiting all the other rational inhabitants. For then they would 
be better off in an association without you, and, at the very least, 
they all would choose to inhabit that one containing all of them 
minus you, rather than remain in your creation. No stable associa- 
tion is such that everyone (but one) in it jointly would leave for 
their own association; for this would contradict the assumption 
that the original association was stable. This reasoning applies as 
well to two or three or n persons whom everyone else in an associa- 
tion would be better off without. Thus we have as a condition of 
stable associations: if A is a set of persons in a stable association 
then there is no proper subset S of A such that each member of S is 
better off in an association consisting only of members of S, than 
he is in A. For if there were such a subset S, its members would 
secede from A, establishing their own association.* 


* In a detailed exposition, we would have to consider whether there 
mightn’t be such an S which would remain in A because the members of S 
couldn’t agree upon a particular division of goods among themselves, or 
whether there mightn’t be many such overlapping subsets S whose complicated 
interactions (which one should a person enter?) lead to everyone’s staying in A . 

The condition we state is related to the notion of the core of a game. An 
allocation is blocked by a coalition S of persons if there is another allocation 
among the members of 5 which makes each of them better off, and which the 
members of S can bring about independently of other persons (independently of 
the relative complement of S). The core of a game consists of all those allocations 
which are not blocked by any coalition. In an economy, the core contains ex- 
actly those allocations to consumers such that no subset of consumers can 
improve each member’s position by reallocating their own assets among them- 
selves, independently of the other consumers in the economy. It is a trivial con- 
sequence that every allocation in the core is Pareto-optimal, and an interesting 
theorum that every equilibrium allocation of a competitive market is in the 
core. Furthermore, for every allocation in the core, there is a competitive 
market with an initial distribution of goods, which gives rise to it as an equilib- 
rium allocation. 

For these results, with slight variants in the conditions necessary to prove the 
theorems, see Gerard Debreu and Herbert Scarf, "A Limit Theorem on the Core 
of an Economy,” International Economic Review , 4, no. 3 (1963); Robert Aumann, 
"Markets with a Continuum of Traders,” Econometrica, 32 (1964); and (for a 
statement of sufficient conditions for a core to be nonempty) Herbert Scarf, 
“The Core of an N-Person Game,” Econemetrica, 35, (1967). These articles have 



A Framework for Utopia 


301 


Suppose that you are spokesman for all of the rational beings 
(other than me) in the world I have imagined and created. Your 
decision between staying in my association A 1 or starting another 
one A 1 ' containing all of you but not containing me, is the same 
decision as the one of whether to admit me as a new member into 
an association A 1 ' which you all already belong to (giving me the 
same role in the expanded Ai' as I have in Ai). In each case the 
crucial fact which determines the decision is the same; viz. are you 
better off with me or without me. Thus, in order to determine 
which of the many worlds Ai, A2, . . . , that I can imagine 
would have all of its rational members stay in association with me 
rather than form associations A 1', A 2', . . . , containing (all of) 
them but not me, we may consider all of the associations Ai', 
A 2’, . . . , as already existing and ask which of them would 
admit me as a new member and on what terms? 

No association will admit me if I take more from the association 
than I give to it: they will not choose to lose by admitting me. 
What I take from the association is not the same as what I get from 
it; what I take is how much they value what they give me under 
the arrangement, what I get is how much I value my membership. 
Supposing for the moment that the group is united and can be 
represented by one utility function (where U Y (x) is the utility of x 
for Y), an association A/ will admit me only if 

U A .' (admitting me) 3 = U A ' (excluding me), 

i.e., U A .' (being in Ai) 3 = U A ' (being in A,'), 

i.e., (what those in A/ gain from my membership) 3 = (what they 
give up to me to get me into the association) 

From no association will I be able to get something worth more to 
them than what I contribute is worth to them. 


given rise to an extensive literature. See Kenneth Arrow and Frank Hahn, Gen- 
eral Competitive Analysis (San Francisco: Holden-Day, 1971.) Since the notion of 
core they study is obviously central to our possible-worlds situation, one would 
expect results close to theirs to carry over to our case as well. A compendium of 
other useful and suggestive material having relevance to the possible-worlds 
model is Gerard Debreu, Theory of Value (New York: Wiley, 1959). Unfortu- 
nately, our possible-worlds model is more complicated in some ways than the 
ones these references study, so that their results cannot be carried over directly 
and immediately. 




3° 2 


Utopia 


Need I accept less than this from any association? If one associa- 
tion offers me less than they would gain from my presence, it will 
be to the advantage of another association that values my presence 
equally to offer me something more than the first (though less 
than they would gain) in order to get me to join their association 
rather than the first. Similarly for a third association with regard 
to the second, and so on. There can be no collusion among associa- 
tions to keep my payment down, since I can imagine any number 
of other entrants into the market for my presence, and so associa- 
tions will bid up their offers to me. 

We seem to have a realization of the economists’ model of a 
competitive market. This is most welcome, for it gives us imme- 
diate access to a powerful, elaborate, and sophisticated body of 
theory and analysis. Many associations competing for my mem- 
bership are the same structurally as many firms competing to 
employ me. In each case I receive my marginal contribution. 
Thus, it seems, we have the result that in every stable association, 
each person receives his marginal contribution; in each world 
whose rational members can imagine worlds and emigrate to them 
and in which no rational member can imagine another world he 
would rather live in (in which each person has the same imagining 
and emigrating rights) which he thinks would endure, each person 
receives his marginal contribution to the world. 

Our argument thus far has been intuitive; we shall offer no for- 
mal argument here. But we should say something more about the 
content of the model. The model is designed to let you choose 
what you will, with the sole constraint being that others may do 
the same for themselves and refuse to stay in the world you have 
imagined. But this alone does not create in the model the requisite 
sort of equality in the exercise of rights. For you have imagined 
and created some of those persons, whereas they have not imagined 
you. You may have imagined them with certain wants, and in par- 
ticular you may have imagined them as most wanting to live in a 
world with the precise character you have created, even though in 
it they are abject slaves. In this case, they will not leave your 
world for a better one, for in their view there cannot be a better 
one. No other worlds could successfully compete for their mem- 
bership, and so their payoff will not be bid up in a competitive 
market. 



A Framework for Utopia 


303 


What natural and intuitive restrictions should be placed on what 
the beings are imagined to be like, in order to avoid this result? 
To avoid the messiness of a frontal assault that describes the con- 
straints on what the people imagined are like, we impose the fol- 
lowing constraint: The world cannot be imagined so that it logi- 
cally follows that (1) its inhabitants (or one of them) most (or »th 
most) want to live in it or (2) its inhabitants (or one of them) most 
(or «th most) want to live in a world with a certain (kind of) per- 
son, and will do whatever he says, and so on. For each way in 
which trouble can be caused, once we (or someone else) thinks of it 
we can explicitly exclude it by a proviso of the constraint. And 
this procedure will do, for our purposes, so long as there is a finite 
number of ways that the construction can be overturned. Imposing 
this constraint does not trivialize our construction. For the argu- 
ment to the result about payment according to marginal contribu- 
tion is the interesting theoretical step (provided by economic 
theory and game theory); focused wants directed to particular peo- 
ple or a particular possible world would constitute a roadblock in 
getting from our initial starting place to the result; there is in- 
dependent intuitive reason to eliminate those focused wants, apart 
from the fact that it prevents the derivation of the result; and the 
details of the limitations on the initial situation to avoid these 
wants are not themselves likely to be of independent interest. It is 
best, then, merely to exclude these wants. 

The epistemology of the situation needn’t disturb us. No one 
can circumvent the constraint by depending on the fact that “fol- 
lows from” is not an effective notion. For as soon as it is known 
that (1) or (2) (or an added proviso) does follow, the imagined 
world is excluded. More serious is the problem that something 
may follow causally, even though it does not logically follow. This 
would make it unnecessary to say explicitly that one of these 
imagined persons most wants X. Given a causal theory about the 
generation of wants, for example, some theory of operant condi- 
tioning, the person might imagine that someone has undergone 
just that past history which his empirical theory tells him causally 
produces the want for X as stronger than his other wants. Again, 
various ad hoc restrictions suggest themselves, but it seems best 
simply to add the additional constraint that the imaginer may not 
describe people and the world so that he knows it follows causally 



304 


Utopia 


that . . . (continuing as in the “logically follows’’ condition). It is 
only what he knows follows that we wish to exclude. It would be 
too strong to require that no such thing actually follow from his 
imagined description. If he doesn’t know about it, he can’t exploit 
it. 

Though the imaginer of the world cannot design other persons 
so as to specially favor his own position, he might imagine others 
accepting certain general principles. (These general principles 
might favor his situation.) For example, he might imagine that 
everyone in the world, including himself, accepts a principle of 
equal division of product, admitting anyone to the world with an 
equal share. If the population of a world unanimously accepts 
some (other) general principle P of distribution, then each person 
in that world will receive their P share instead of their marginal 
contribution. Unanimity is required, for any dissident accepting a 
different general distributive principle P' will move to a world 
containing only adherents ofP'. In a marginal contribution world, 
of course, any individual may choose to give some of his share to 
another as a gift; unless (though it is difficult to see what would be 
the motivation for this) their general principle of distribution 
requires distribution according to marginal contribution and con- 
tains a proviso against gifts. Therefore, in each world everyone re- 
ceives his marginal product, some of which he may transfer to 
others who thereby receive more than their marginal product, or 
everyone unanimously consents to some other principle of distribu- 
tion. This seems an appropriate point to note that not all of the 
worlds will be desirable ones; the special principle P that all the 
inhabitants of some world are imagined to favor might be quite 
atrocious. Our imaginary construction has been devised to focus 
only upon certain aspects of the relations among persons. 

Do the particular details of the construction allow not only an 
infinite number of communities demanding someone’s presence, 
but also their imagining an infinite number of candidates for inclu- 
sion? This would be unfortunate, for in a market with infinite 
supply and infinite demand the price is theoretically indeter- 
minate . 2 But our construction involves each person imagining a fi- 
nite number of others to inhabit his world with him. If these 
leave, he may imagine yet finitely many others. The first people 
who left are now out of the picture. They do not compete with the 



A Framework for Utopia 305 

new arrivals, being busy with their own tasks of world construct- 
ing. Though there is no finite upper limit to the number a person 
may imagine in the process, in no world is there an actual infinity 
of people competing for shares. And imagining a world in which, 
because of external circumstances, a person’s marginal product is 
low makes it unlikely that he will choose to stay put. 

Are there any stable worlds at all? In place of an association in 
which someone receives his quite low contribution, he will imag- 
ine an alternative association in which his contribution is higher 
than that in the first and will leave the first (rendering it un- 
stable). By this reasoning, won’t he imagine and choose to inhabit 
that association in which his contribution (and hence payment) is 
greatest? Won’t everyone populate his association with maximally 
appreciative association mates? Is there some group of beings 
(larger than unit sets) who will be mutually maximally apprecia- 
tive; that is, some group G such that for each member x of G, 
G~[x] values x’s presence more than any other possible group of 
people would valuer’s presence? Even if there is some such group 
G, is there one (or another) for everybody; for each person is there 
some mutually maximally appreciative group of which he is a 
member? 

Fortunately, the competition isn’t so keen. We needn’t consider 
groups G such that for each member x of G, G — [x] values x’s 
presence more than any other possible group would value x’s pres- 
ence. We need only consider groups G such that for each member 
x of G, G~ [x] values x’s presence more than any other possible 
stable group of people would value x’s presence. A stable group G 
is a mutually maximally appreciate group where for each member 
x, G — [x] values x’s presence more than any other possible stable 
group. Clearly this circular explanation of “stability” won’t do; 
and to say “a group that will last, from which no one will emi- 
grate” isn’t closely enough tied to theory-laden notions to give in- 
teresting results, for example, that there are stable groups. Similar 
problems about stable coalitions have been faced by game theorists 
with only partial success, and our problem is more difficult theo- 
retically. (Indeed, we have not yet imposed conditions sufficient to 
guarantee the existence of a stable finite group, for it is compatible 
with all we’ve said that, on some scale of measurement, above 
some n, the utility income of a community with n members = » 2 . 



306 


Utopia 


If the community divides utility equally, they will expand indefi- 
nitely, with people leaving each community for a larger one.) 

Prospects for stable associations are improved when we realize 
that the supposition that each person receives only what others 
give up to him is too strong. A world may give a person some- 
thing worth more to him than the worth to the others of what 
they give up to him. A major benefit to a person may come, for 
example, from coexisting in the world with the others and being a 
part of the normal social network. Giving him the benefit may in- 
volve, essentially, no sacrifice by the others. Thus in one world a 
person may get something worth more to him than his payoff from 
the stable association which most values his presence. Though they 
give up less, he gets more. Since a person wishes to maximize 
what he gets (rather than what he is given), no person will imag- 
ine a maximally appreciative world of inferior beings to whose exis- 
tence he is crucial. No one will choose to be a queen bee. 

Nor will a stable association consist of narcissistic persons com- 
peting for primacy along the same dimensions. Rather, it will 
contain a diversity of persons, with a diversity of excellences and 
talents, each benefiting from living with the others, each being of 
great use or delight to the others, complementing them. And each 
person prefers being surrounded by a galaxy of persons of diverse 
excellence and talent equal to his own to the alternative of being 
the only shining light in a pool of relative mediocrity. All admire 
each other’s individuality, basking in the full development in 
others of aspects and potentialities of themselves left relatively un- 
developed . 3 

The model we sketch here seems well worth investigating in de- 
tail; it is intrinsically interesting, promises deep results, is a natu- 
ral way to approach the subject of the best of all possible worlds, 
and constitutes an area for the application of the most developed 
theories dealing with the choice of rational agents (namely, deci- 
sion theory, game theory, and economic analysis), tools which 
surely must be of importance for political philosophy and ethics. It 
applies these theories not merely by using their results in the area 
for which they were intended, but by discussing a situation, other 
than the one theorists considered, which is, in the logician’s tech- 
nical sense, a model of the theories. 



A Framework for Utopia 


307 


THE MODEL PROJECTED ONTO OUR WORLD 

In our actual world, what corresponds to the model of possible 
worlds is a wide and diverse range of communities which people 
can enter if they are admitted, leave if they wish to, shape accord- 
ing to their wishes; a society in which utopian experimentation 
can be tried, different styles of life can be lived, and alternative 
visions of the good can be individually or jointly pursued. The de- 
tails and some of the virtues of such an arrangement, which we 
shall call the framework, will emerge as we proceed. There are im- 
portant differences between the model and the model's projection 
onto the actual world. The problems with the operation of the 
framework in the actual world stem from the divergencies between 
our earthbound actual life and the possible-worlds model we have 
been discussing, raising the question of whether even if the real- 
ization of the model itself would be ideal, the realization of its 
pale projection is the best we can do here. 

1 . Unlike the model, we cannot create all the people whose existence we 
desire. So that even if there were a possible maximally mutually 
valuing association containing you, its other members actually may 
not exist; and the other persons among whom you actually live will 
not constitute your best fan club. Also there may be a particular 
kind of community you wish to live in, yet not enough other actual 
people (can be persuaded to) wish to live in such a community so as 
to give it a viable population. In the model, for a diverse range of 
nonexploitative communities, there are always enough other persons 
who wish to live in one. 

2. Unlike the model, in the actual world communities impinge upon 
one another, creating problems of foreign relations and self-defense 
and necessitating modes of adjudicating and resolving disputes be- 
tween the communities. (In the model, one association impinges 
upon another only by drawing away some of its members.) 

3. In the actual world, there are information costs in finding out what 
other communities there are, and what they are like, and moving 
and travel costs in going from one community to another. 

4. Furthermore, in the actual world, some communities may try to 
keep some of their members ignorant of the nature of other alterna- 
tive communities they might join, to try to prevent them from 
freely leaving their own community to join another. This raises 



308 


Utopia 


the problem of how freedom of movement is to be institutionalized 
and enforced when there are some who will wish to restrict it. 

Given the formidable differences between the actual world and 
the model of possible worlds, of what relevance is that fantasy to 
it? One should not be too quick, here or elsewhere, with such fan- 
tasies. For they reveal much about our condition. One cannot 
know how satisfied we shall be with what we achieve among our 
feasible alternatives without knowing how far they diverge from 
our fantasied wishes: and it is only by bringing such wishes, and 
their force, into the picture that we shall understand people’s ef- 
forts toward expanding the range of their currently feasible alter- 
natives. The details into which some utopian writers plunge in- 
dicate a blurring of their line between fantasy and the feasible, not 
to mention the actually predicted; for example, Fourier’s view that 
the seas would turn to lemonade, friendly antilions and antitigers 
would evolve, and so on. Even the wildest hopes and predictions 
(such as Trotsky’s in closing Literature and Revolution) express pangs 
and a longing whose omission from a portrait of us leaves it merely 
three dimensional. I do not laugh at the content of our wishes that 
go not only beyond the actual and what we take to be feasible in 
the future, but even beyond the possible; nor do I wish to deni- 
grate fantasy, or minimize the pangs of being limited to the pos- 
sible. 

The realization of the possible-worlds situation would involve 
the satisfaction of various conditions; we cannot actually satisfy all 
of these conditions, but we can satisfy many of them. Even if satis- 
fying all of them would be the best situation, it is not obvious 
(given that we cannot satisfy all) that we should try to satisfy each 
of the ones it is possible to satisfy, even if it is jointly possible to 
satisfy these latter. Perhaps near misses of the totality of condi- 
tions are worse than great divergencies; perhaps we should inten- 
tionally violate some of the conditions which it is possible to sat- 
isfy in order to compensate for or adjust for the (necessary) 
violation of some of the other considerations . 4 

Our consideration of alternative arguments for the framework, 
and discussion of objections to it, will make a case for (but not es- 
tablish) the proposition that it would be better to realize the 
framework than to realize alternatives even more divergent from 



A Framework for Utopia 


309 


the possible-worlds model than it. We should note here that some 
of the ways the framework diverges from the possible-worlds 
model, though making the framework less desirable than the pos- 
sible-worlds model, leave it more desirable than any other actually 
realizable situation. For example, in the actual operation of the 
framework there will be only a limited number of communities, so 
that for many people, no one community will exactly match their 
values and the weighting they give them. Under the framework, 
each individual chooses to live in the actual community which 
(putting it roughly) comes closest to realizing what is most impor- 
tant to him. But the problem about no community exactly fitting 
someone’s values arises only because people disagree about their 
values and their weighting. (If there were no disagreement, there 
would be enough other people to populate the exactly desired 
community.) So there will be no way to satisfy all of the values of 
more than one person, if only one set of values can be satisfied. 
Other persons will have their values more or less closely satisfied. 
But if there is a diverse range of communities, then (putting it 
roughly) more persons will be able to come closer to how they 
wish to live, than if there is only one kind of community. 


THE FRAMEWORK 

It would be disconcerting if there were only one argument or con- 
nected set of reasons for the adequacy of a particular description of 
utopia. Utopia is the focus of so many different strands of aspira- 
tion that there must be many theoretical paths leading to it. Let 
us sketch some of these alternate, mutually supporting, theoretical 
routes.* 

The first route begins with the fact that people are different. 
They differ in temperament, interests, intellectual ability, aspira- 
tions, natural bent, spiritual quests, and the kind of life they wish 
to lead. They diverge in the values they have and have different 


* In order to keep the line of argument here independent of the first two 
parts of this book, I do not discuss here the moral arguments for individual 
liberty. 



3io 


Utopia 


weightings for the values they share. (They wish to live in dif- 
ferent climates — some in mountains, plains, deserts, seashores, 
cities, towns.) There is no reason to think that there is one commu- 
nity which will serve as ideal for all people and much reason to 
think that there is not. 

We may distinguish among the following theses: 

I. For each person there is a kind of life that objectively is the best for 
him. 

a. People are similar enough, so that there is one kind of life which 
objectively is the best for each of them. 

b. People are different, so that there is not one kind of life which ob- 
jectively is the best for everyone, and, 

1 . The different kinds of life are similar enough so that there is 
one kind of community (meeting certain constraints) which ob- 
jectively is the best for everyone. 

2 . The different kinds of life are so different that there is not one 
kind of community (meeting certain constraints) which objec- 
tively is the best for everyone (no matter which of these dif- 
ferent lives is best for them). 

II. For each person, so far as objective criteria of goodness can tell (in- 
sofar as these exist), there is a wide range of very different kinds of 
life that tie as best; no other is objectively better for him than any 
one in this range, and no one within the range is objectively better 
than any other . 5 And there is not one community which objectively 
is the best for the living of each selection set from the family of sets 
of not objectively inferior lives. 

For our purposes at this point either of Ib2 or II will serve. 
Wittgenstein, Elizabeth Taylor, Bertrand Russell, Thomas 
Merton, Yogi Berra, Allen Ginsburg, Harry Wolfson, Thoreau, 
Casey Stengel, The Lubavitcher Rebbe, Picasso, Moses, Einstein, 
Hugh Heffner, Socrates, Henry Ford, Lenny Bruce, Baba Ram 
Dass, Gandhi, Sir Edmund Hillary, Raymond Lubitz, Buddha, 
Frank Sinatra, Columbus, Freud, Norman Mailer, Ayn Rand, 
Baron Rothschild, Ted Williams, Thomas Edison, H. L. 
Mencken, Thomas Jefferson, Ralph Ellison, Bobby Fischer, Emma 
Goldman, Peter Kropotkin, you, and your parents. Is there really 
one kind of life which is best for each of these people? Imagine all 
of them living in any utopia you’ve ever seen described in detail. 
Try to describe the society which would be best for all of these 
persons to live in. Would it be agricultural or urban? Of great ma- 
terial luxury or of austerity with basic needs satisfied? What would 



A Framework for Utopia 31 1 

relations between the sexes be like? Would there be any institu- 
tion similar to marriage? Would it be monogamous? Would chil- 
dren be raised by their parents? Would there be private property? 
Would there be a serene secure life or one with adventures, 
challenges, dangers, and opportunities for heroism? Would there 
be one, many, any religion? How important would it be in peo- 
ple’s lives? Would people view their life as importantly centered 
about private concerns or about public action and issues of public 
policy? Would they be single-mindedly devoted to particular kinds 
of accomplishments and work or jacks-of-all-trades and pleasures 
or would they concentrate on full and satisfying leisure activities? 
Would children be raised permissively, strictly? What would their 
education concentrate upon? Will sports be important in people’s 
lives (as spectators, participants)? Will art? Will sensual pleasures 
or intellectual activities predominate? Or what? Will there be 
fashions in clothing? Will great pains be taken to beautify appear- 
ance? What will the attitude toward death be? Would technology 
and gadgets play an important role in the society? And so on. 

The idea that there is one best composite answer to all of these 
questions, one best society for everyone to live in, seems to me to be 
an incredible one. (And the idea that, if there is one, we now 
know enough to describe it is even more incredible.) No one 
should attempt to describe a utopia unless he’s recently reread, for 
example, the works of Shakespeare, Tolstoy, Jane Austen, Rabelais 
and Dostoevski to remind himself of how different people are. (It 
will also serve to remind him of how complex they are; see the 
third route below.) 

Utopian authors, each very confident of the virtues of his own 
vision and of its singular correctness, have differed among them- 
selves (no less than the people listed above differ) in the institu- 
tions and kinds of life they present for emulation. Though the pic- 
ture of an ideal society that each presents is much too simple (even 
for the component communities to be discussed below), we should 
take the fact of the differences seriously. No utopian author has 
everyone in his society leading exactly the same life, allocating 
exactly the same amount of time to exactly the same activities. 
Why not? Don’t the reasons also count against just one kind of 
community? 

The conclusion to draw is that there will not be one kind of 



312 


Utopia 


community existing and one kind of life led in utopia. Utopia will 
consist of utopias, of many different and divergent communities in 
which people lead different kinds of lives under different institu- 
tions. Some kinds of communities will be more attractive to most 
than others; communities will wax and wane. People will leave 
some for others or spend their whole lives in one. Utopia is a 
framework for utopias, a place where people are at liberty to join 
together voluntarily to pursue and attempt to realize their own 
vision of the good life in the ideal community but where no one 
can impose his own utopian vision upon others . 6 The utopian soci- 
ety is the society of utopianism. (Some of course may be content 
where they are. Not everyone will be joining special experimental 
communities, and many who abstain at first will join the commu- 
nities later, after it is clear how they actually are working out.) 
Half of the truth I wish to put forth is that utopia is meta-utopia: 
the environment in which utopian experiments may be tried out; 
the environment in which people are free to do their own thing; 
the environment which must, to a great extent, be realized first if 
more particular utopian visions are to be realized stably. 

If, as we noted at the beginning of this chapter, not all goods 
can be realized simultaneously, then trade-offs will have to be 
made. The second theoretical route notes that there is little reason 
to believe that one unique system of trade-offs will command uni- 
versal assent. Different communities, each with a slightly different 
mix, will provide a range from which each individual can choose 
that community which best approximates his balance among com- 
peting values. (Its opponents will call this the smorgasbord con- 
ception of utopia, preferring restaurants with only one dinner 
available, or, rather, preferring a one-restaurant town with one 
item on the menu.) 


DESIGN DEVICES AND FILTER DEVICES 

The third theoretical route to the framework for utopia is based on 
the fact that people are complex. As are the webs of possible rela- 
tionships among them. Suppose (falsely) that the earlier arguments 
are mistaken and that one kind of society is best for all. How are 



A Framework for Utopia 


3i3 


we to find out what this society is like? Two methods suggest 
themselves, which we shall call design devices and filter devices. 

Design devices construct something (or its description) by some 
procedure which does not essentially involve constructing descrip- 
tions of others of its type. The result of the process is one object. 
In the case of societies, the result of the design process is a descrip- 
tion of one society, obtained by people (or a person) sitting down 
and thinking about what the best society is. After deciding, they 
set about to pattern everything on this one model. 

Given the enormous complexity of man, his many desires, aspi- 
rations, impulses, talents, mistakes, loves, sillinesses, given the 
thickness of his intertwined and interrelated levels, facets, rela- 
tionships (compare the thinness of the social scientists’ description 
of man to that of the novelists), and given the complexity of inter- 
personal institutions and relationships, and the complexity of coor- 
dination of the actions of many people, it is enormously unlikely 
that, even if there were one ideal pattern for society, it could be 
arrived at in this a priori (relative to current knowledge) fashion. 
And even supposing that some great genius did come along with 
the blueprint, who could have confidence that it would work out 
well? * 

Sitting down at this late stage in history to dream up a descrip- 
tion of the perfect society is not of course the same as starting from 
scratch. We have available to us partial knowledge of the results of 
application of devices other than design devices, including partial 
application of the filter device to be described below. It is helpful 
to imagine cavemen sitting together to think up what, for all 
time, will be the best possible society and then setting out to in- 


* No person or group I (or you) know of could come up with an adequate 
“blueprint” (much less be trusted to do so) for a society of beings as complex 
personally and interpersonally as they themselves are. [“In fact, no utopia has 
ever been described in which any sane man would on any conditions consent to 
live, if he could possibly escape.” Alexander Gray, The Socialist Tradition (New 
York: Harper & Row, 1968), p. 63} In view of this, it is strategically shrewd 
of groups who wish totally to remake all of society according to one pattern to 
eschew stating that pattern in detail and to keep us in the dark about how 
things will work after their change. (“No blueprints.”) The behavior of the fol- 
lowers is less easy to understand, but perhaps the more vague the picture, the 
more each person can assume that it is really exactly what he wants that is 
planned and will be brought about. 



314 Utopia 

stitute it. Do none of the reasons that make you smile at this 
apply to us? 

Filter devices involve a process which eliminates (filters out) 
many from a large set of alternatives. The two key determinants of 
the end result(s) are the particular nature of the filtering out pro- 
cess (and what qualities it selects against) and the particular nature 
of the set of alternatives it operates upon (and how this set is 
generated). Filtering processes are especially appropriate for de- 
signers having limited knowledge who do not know precisely the 
nature of a desired end product. For it enables them to utilize 
their knowledge of specific conditions they don’t want violated in 
judiciously building a filter to reject the violators. It might turn 
out to be impossible to design an appropriate filter, and one might 
try another filter process for this task of design. But generally, it 
seems, less knowledge (including knowledge of what is desirable) 
will be required to produce an appropriate filter, even one that 
converges uniquely upon a particular kind of product, than would 
be necessary to construct only the product(s) from scratch. 

Furthermore, if the filtering process is of the type that involves 
a variable method of generating new candidates, so that their qual- 
ity improves as the quality of the members remaining after pre- 
vious filtering operations improves, and it also involves a variable 
filter that becomes more selective as the quality of the candidates 
sent into it improves (that is, it rejects some candidates which 
previously had passed successfully through the filter), then one le- 
gitimately may expect that the merits of what will remain after 
long and continued operation of the process will be very high in- 
deed. We should not be too haughty about the results of filter 
processes, being one ourselves. From the vantage point of the con- 
siderations leading us to recommend a filter process in the con- 
structing of societies, evolution is a process for creating living 
beings appropriately chosen by a modest deity, who does not know 
precisely what the being he wishes to create is like.* 


* Compare: "Nor is this world inhabited by man the first of things earthly 
created by God. He made several worlds before ours, but He destroyed them all 
because He was pleased with none until He created ours." Louis Ginsburg, 
Legends of the Bible (New York: Simon & Schuster, 1961), p. 2. 

The whole subject of filtering devices, deterministic and stochastic, and how 
they should differ for different kinds of tasks, is tremendously interesting. There 



A Framework for Utopia 315 

A filtering process for specifying a society which might come to 
mind is one in which the people planning out the ideal society 
consider many different kinds of societies and criticize some, 
eliminate some, modify the descriptions of others, until they come 
to the one they consider best. This no doubt is how any design 
team would work, and so it should not be assumed that design 
devices exclude filtering features. (Nor need filter devices exclude 
design aspects, especially in the generating process.) But one can- 
not determine in advance which people will come up with the best 
ideas, and all ideas must be tried out (and not merely simulated on 


is not, to my knowledge, any detailed theory of optimal filters (relative to 
their tasks) and their features. One would expect that the work on mathematical 
models of evolution (and evolutionary theory itself) would be useful and sugges- 
tive in beginning to construct such a general theory. See R. C. Lewontin, 
“Evolution and Theory of Games "Journal of Theoretical Biology, i960, Howard 
Levene, “Genetic Diversity and Diversity of Environments: Mathematical 
Aspects,” in the Fifth Berkeley Symposium, Vol. 4, and the references cited 
therein, Crow and Kimura, Introduction to Population Genetics Theory (N.Y.: 
Harper & Row, 1970). 

Consider as another illustration the issues of genetic engineering. Many 
biologists tend to think the problem is one of design, of specifying the best types 
of persons so that biologists can proceed to produce them. Thus they worry over 
what sort(s) of person there is to be and who will control this process. They do 
not tend to think, perhaps because it diminishes the importance of their role, of 
a system in which they run a “genetic supermarket,” meeting the individual 
specifications (within certain moral limits) of prospective parents. Nor do they 
think of seeing what limited number of types of persons people’s choices would 
converge upon, if indeed there would be any such convergence. This super- 
market system has the great virtue that it involves no centralized decision fixing 
the future human type(s). If it is worried that some important ratios will be al- 
tered, for example of males and females, a government could require that ge- 
netic manipulation be carried on so as to fit a certain ratio. Supposing, for sim- 
plicity, that the desired ratio is 1:1, hospitals and clinics could be required (at 
least as a bookkeeping arrangement) to pair couples desiring a male child with 
those desiring a female before aiding either couple in realizing their desires. If 
more couples desired one alternative, couples would pay others to form the op- 
posite couple in the pair, and a market would develop to the economic benefit 
of those indifferent about the sex of their next child. Maintenance of such a 
macroratio would appear to be more difficult in a purely libertarian system. 
Under it either parents would subscribe to an information service monitoring 
the recent births and so know which sex was in shorter supply (and hence would 
be more in demand later in life), thus adjusting their activities, or interested in- 
dividuals would contribute to a charity that offers bonuses to maintain the 
ratio, or the ratio would leave 1:1, with new family and social patterns develop- 
ing. 




316 


Utopia 


a computer) to see how they will work.* And some ideas will 
come only as we are (post facto) trying to describe what patterns 
have evolved from the spontaneous coordination of the actions of 
many people. 

If the ideas must actually be tried out, there must be many 
communities trying out different patterns. The filtering process, 
the process of eliminating communities, that our framework in- 
volves is very simple: people try out living in various communi- 
ties, and they leave or slightly modify the ones they don’t like 
(find defective). Some communities will be abandoned, others will 
struggle along, others will split, others will flourish, gain mem- 
bers, and be duplicated elsewhere. Each community must win and 
hold the voluntary adherence of its members. No pattern is imposed 
on everyone, and the result will be one pattern if and only if every- 
one voluntarily chooses to live in accordance with that pattern of 
community . 7 

The design device comes in at the stage of generating specific 
communities to be lived in and tried out. Any group of people 
may devise a pattern and attempt to persuade others to participate 
in the adventure of a community in that pattern. Visionaries and 
crackpots, maniacs and saints, monks and libertines, capitalists 
and communists and participatory democrats, proponents of pha- 
lanxes (Fourier), palaces of labor (Flora Tristan), villages of unity 
and cooperation (Owen), mutualist communities (Proudhon), time 
stores (Josiah Warren), Bruderhof , 8 kibbutzim , 9 kundalini yoga 
ashrams, and so forth, may all have their try at building their 
vision and setting an alluring example. It should not be thought 
that every pattern tried will be explicitly designed de novo. Some 
will be planned modifications, however slight, of others already 
existing (when it is seen where they rub), and the details of many 
will be built up spontaneously in communities that leave some 
leeway. As communities become more attractive for their inhabi- 
tants, patterns previously adopted as the best available will be 


* For some writers, the most interesting points come after they think they’ve 
thought everything through and have begun to set it down. Sometimes, at this 
stage, there is a change in point of view, or a realization that it is something 
different one must write (on what, before writing, one assumed was a subsidiary 
and clear subject). How much greater will be the differences between a plan 
(even one written down) and the working out in detail of the life of a society. 



A Framework for Utopia 


3i7 


rejected. And as the communities which people live in improve 
(according to their lights), ideas for new communities often will 
improve as well. 

The operation of the framework for utopia we present here thus 
realizes the advantages of a filtering process incorporating mutu- 
ally improving interaction between the filter and the surviving 
products of the generating process, so that the quality of generated 
and nonrejected products improves.* Furthermore, given people’s 
historical memories and records, it has the feature that an already 
rejected alternative (or its slight modification) can be retried, per- 
haps because new or changed conditions make it now seem more 
promising or appropriate. This is unlike biological evolution 
where previously rejected mutations cannot easily be recalled when 
conditions change. Also, evolutionists point out the advantages of 
genetic heterogeneity (polytypic and polymorphic) when condi- 
tions change greatly. Similar advantages adhere to a system of 
diverse communities, organized along different lines and perhaps 
encouraging different types of character, and different patterns of 
abilities and skills. 


THE FRAMEWORK AS UTOPIAN COMMON GROUND 

The use of a filter device dependent upon people’s individual deci- 
sions to live in or leave particular communities is especially appro- 
priate. For the ultimate purpose of utopian construction is to get 
communities that people will want to live in and will choose vol- 
untarily to live in. Or at least this must be a side effect of success- 
ful utopian construction. The filtering process proposed will 
achieve this. Furthermore, a filtering device dependent upon peo- 
ple’s decisions has certain advantages over one which operates 
mechanically, given our inability to formulate explicitly principles 
which adequately handle, in advance, all of the complex, mul- 
tifarious situations which arise. We often state prima facie princi- 


* This framework is not the only possible filter process for the task of arriv- 
ing at a desirable or the best society (though I cannot think of another which 
would have the special interaction virtues to so great an extent), so the general 
virtues of filter processes over design devices do not argue uniquely for it. 



3 i8 


Utopia 


pies without thinking that we can mark off in advance all of the 
exceptions to the principle. But though we cannot describe in ad- 
vance all of the exceptions to the principle, we do think that very 
often we will be able to recognize that a particular situation we are 
presented with is an exception. 10 

Similarly, we will not be able in advance to program automati- 
cally a filtering device to reject all and only what should be re- 
jected (either objectively, or in our view now, or in our view 
then). We will have to leave room for people’s judging each par- 
ticular instance. This is not by itself an argument for each person’s 
judging for himself. Nor is the only alternative to the mechanical 
application of explicitly formulated rules the operation of a system 
wholly dependent upon choices without any guidelines at all, as it 
is clear from the existence of our legal system. So the fact of not 
being able to state or program exceptionless principles in advance 
does not, by itself, suffice to get to my preferred alternative of every- 
one’s choice, and no guidelines set up in advance (except for those 
guidelines that protect this preferred argument). 

We have argued that even if there is one kind of community 
that is best for each and every person, the framework set out is the 
best means for finding out the nature of that community. Many 
more arguments can and should be offered for the view that, even if 
there is one kind of society that is best for everyone, the operation 
of the framework (i) is best for anyone’s coming up with a picture 
of what the society is like, (2) is best for anyone’s becoming con- 
vinced that the picture is indeed one of the best society, (3) is best 
for large numbers of people’s becoming so convinced, and (4) is 
the best way to stabilize such a society with people living securely 
and enduringly under that particular pattern. I cannot offer these 
other arguments here. (And I could not offer all of them anywhere; 
understanding why supports the correctness of the position.) How- 
ever, I do wish to note that the arguments for the framework of- 
fered and mentioned here are even more potent when we drop the 
(false) assumption that there is one kind of society best for every- 
one, and so stop misconstruing the problem as one of which one 
type of community every individual person should live in. 

The framework has two advantages over every other kind of 
description of utopia: first, it will be acceptable to almost every 
utopian at some future point in time, whatever his particular vi- 



A Framework for Utopia 


3i9 


sion; and second, it is compatible with the realization of almost all 
particular utopian visions, though it does not guarantee the real- 
ization or universal triumph of any particular utopian vision.* Any 
utopian will agree that our framework is an appropriate one for a 
society of good men. For good men, he thinks, voluntarily will 
choose to live under the particular pattern he favors, if they are as 
rational as he is and thus are able equally to see its excellence. And 
most Utopians will agree that at some point in time our framework 
is an appropriate one, for at some point (after people have been 
made good, and uncorrupt generations have been produced) people 
voluntarily will choose to live under the favored pattern. + Thus 
our framework is now admitted, among a wide range of Utopians 
and their opponents, to be appropriate common ground, sooner or 
later. For each thinks his own particular vision would be realized 
under it. 

Those with different utopian visions who believe the framework 
is an appropriate path to their vision (as well as being permissible 
after their vision is realized) might well cooperate in attempting to 
realize the framework, even given mutual knowledge of their dif- 
ferent predictions and predilections. Their different hopes conflict 
only if they involve universal realization of one particular pat- 
tern. We may distinguish three utopian positions: imperialistic 
utopianism, which countenances the forcing of everyone into one 
pattern of community; missionary utopianism, which hopes to per- 
suade or convince everyone to live in one particular kind of com- 
munity, but will not force them to do so; and existential utopian- 


* I say almost every utopian and almost all particular utopian visions because 
it is unacceptable to, and incompatible with, “Utopians” of force and domi- 
nance. 

t I say “most Utopians,” because of the following possible position: 

1. Pattern P is best, not only for uncorrupt persons but also for corrupt 
ones. 

2 . However corrupt ones would not choose voluntarily to live under pat- 
tern P. 

3. Furthermore, it’s an unfortunate empirical fact that there is no way to 
get to uncorrupt people starting from us and our society. 

4. So we can never ger to a situation of most people wanting to live 
under pattern P. 

5. Therefore, since P is the best pattern for all (corrupt or not), it will 
have, continually and eternally, to be imposed. 



3 20 


Utopia 


ism, which hopes that a particular pattern of community will exist 
(will be viable), though not necessarily universally, so that those 
who wish to do so may live in accordance with it. Existential 
Utopians can wholeheartedly support the framework. With full 
knowledge of their differences, adherents of diverse visions may 
cooperate in realizing the framework. Missionary Utopians, 
though their aspirations are universal, will join them in support- 
ing the framework, viewing fully voluntary adherence to their 
preferred pattern as crucial. They will not, however, especially ad- 
mire the framework’s additional virtue of allowing the simulta- 
neous realization of many diverse possibilities. Imperialistic Uto- 
pians, on the other hand, will oppose the framework so long as 
some others do not agree with them. (Well, you can’t satisfy ev- 
erybody; especially if there are those who will be dissatisfied unless 
not everybody is satisfied.) Since any particular community may be 
established within the framework, it is compatible with all partic- 
ular utopian visions, while guaranteeing none. Utopians should 
view this as an enormous virtue; for their particular view would 
not fare as well under utopian schemes other than their own. 


COMMUNITY AND NATION 

The operation of the framework has many of the virtues, and few 
of the defects, people find in the libertarian vision. For though 
there is great liberty to choose among communities, many particu- 
lar communities internally may have many restrictions unjustifi- 
able on libertarian grounds: that is, restrictions which libertairans 
would condemn if they were enforced by a central state apparatus. 
For example, paternalistic intervention into people’s lives, restric- 
tions on the range of books which may circulate in the commu- 
nity, limitations on the kinds of sexual behavior, and so on. But 
this is merely another way of pointing out that in a free society 
people may contract into various restrictions which the govern- 
ment may not legitimately impose upon them. Though the frame- 
work is libertarian and laissez-faire, individual communities within it 
need not be, and perhaps no community within it will choose to be 
so. Thus, the characteristics of the framework need not pervade 



A Framework for Utopia 


321 


the individual communities. In this laissez-faire system it could 
turn out that though they are permitted, there are no actually 
functioning “capitalist” institutions; or that some communities 
have them and others don’t or some communities have some of 
them, or what you will.* 

In previous chapters, we have spoken of a person’s opting out of 
particular provisions of certain arrangements. Why now do we say 
that various restrictions may be imposed in a particular commu- 
nity? Mustn’t the community allow its members to opt out of 
these restrictions? No; founders and members of a small commu- 
nist community may, quite properly, refuse to allow anyone to opt 
out of equal sharing, even though it would be possible to arrange 
this. It is not a general principle that every community or group 
must allow internal opting out when that is feasible. For some- 
times such internal opting out would itself change the character of 
the group from that desired. Herein lies an interesting theoretical 
problem. A nation or protective agency may not compel redis- 
tribution between one community and another, yet a community 
such as a kibbutz may redistribute within itself (or give to another 
community or to outside individuals). Such a community needn’t 
offer its members an opportunity to opt out of these arrangements 
while remaining a member of the community. Yet, I have argued, 
a nation should offer this opportunity; people have a right to so 
opt out of a nation’s requirements. Wherein lies the difference be- 
tween a community and a nation that makes the difference in the 
legitimacy of imposing a certain pattern upon all of its members? 

A person will swallow the imperfections of a package P (which 
may be a protective arrangement, a consumer good, a community) 
that is desirable on the whole rather than purchase a different 
package (a completely different package, or P with some changes), 
when no more desirable attainable different package is worth to 
him its greater costs over P, including the costs of inducing 
enough others to participate in making the alternative package. 
One assumes that the cost calculation for nations is such as to per- 


* It is strange that many young people "in tune with” nature and hoping to 
“go with the flow” and not force things against their natural bent should be at- 
tracted to statist views and socialism, and are antagonistic to equilibrium and 
invisible-hand processes. 



322 


Utopia 


mit internal opting out. But this is not the whole story for two 
reasons. First, it may be feasible in individual communities also to 
arrange internal opting out at little administrative cost (which he 
may be willing to pay), yet this needn’t always be done. Second, 
nations differ from other packages in that the individual himself 
isn’t to bear the administrative costs of opting out of some other- 
wise compulsory provision. The other people must pay for finely 
designing their compulsory arrangements so that they don’t apply 
to those who wish to opt out. Nor is the difference merely a mat- 
ter of there being many alternative kinds of communities while 
there are many fewer nations. Even if almost everyone wished to 
live in a communist community, so that there weren’t any viable 
noncommunist communities, no particular community need also 
(though it is to be hoped that one would) allow a resident individ- 
ual to opt out of their sharing arrangement. The recalcitrant indi- 
vidual has no alternative but to conform. Still, the others do not 
force him to conform, and his rights are not violated. He has 
no right that the others cooperate in making his nonconformity 
feasible. 

The difference seems to me to reside in the difference between a 
face-to-face community and a nation. In a nation, one knows that 
there are nonconforming individuals, but one need not be directly 
confronted by these individuals or by the fact of their nonconfor- 
mity. Even if one finds it offensive that others do not conform, 
even if the knowledge that there exist nonconformists rankles and 
makes one very unhappy, this does not constitute being harmed by 
the others or having one’s rights violated. Whereas in a face-to- 
face community one cannot avoid being directly confronted with 
what one finds to be offensive. How one lives in one’s immediate 
environment is affected. 

This distinction between a face-to-face community and one that 
is not generally runs parallel to another distinction. A face-to-face 
community can exist on land jointly owned by its members, 
whereas the land of a nation is not so held. The community will 
be entitled then, as a body, to determine what regulations are to 
be obeyed on its land; whereas the citizens of a nation do not 
jointly own its land and so cannot in this way regulate its use. If 
all the separate individuals who own land coordinate their actions 



A Framework for Utopia 


323 


in imposing a common regulation (for example, no one may reside 
on this land who does not contribute n percent of his income to 
the poor), the same effect will be achieved as if the nation had 
passed legislation requiring this. But since unanimity is only as 
strong as its weakest link, even with the use of secondary boycotts 
(which are perfectly legitimate), it would be impossible to main- 
tain such a unanimous coalition in the face of the blandishments to 
some to defect. 

But some face-to-face communities will not be situated on 
jointly held land. May the majority of the voters in a small village 
pass an ordinance against things that they find offensive being 
done on the public streets? May they legislate against nudity or for- 
nication or sadism (on consenting masochists) or hand-holding by 
racially mixed couples on the streets? Any private owner can regu- 
late his premises as he chooses. But what of the public thorough- 
fares, where people cannot easily avoid sights they find offensive? 
Must the vast majority cloister themselves against the offensive 
minority? If the majority may determine the limits on detectable 
behavior in public, may they, in addition to requiring that no one 
appear in public without wearing clothing, also require that no 
one appear in public without wearing a badge certifying that he 
has contributed n percent of his income to the needy during the 
year, on the grounds that they find it offensive to look at someone 
not wearing this badge (not having contributed)? And whence this 
emergent right of the majority to decide? Or are there to be no 
“public” place or ways? (Some dangers of this, noted in Chapter 2, 
would be avoided by the Lockean proviso of Chapter 7 . ) Since I do 
not see my way clearly through these issues, I raise them here only 
to leave them. 


COMMUNITIES WHICH CHANGE 


The individual communities may have any character compatible 
with the operation of the framework. If a person finds the charac- 
ter of a particular community uncongenial, he needn’t choose to 



live in it. This is all well and good for an individual deciding 
which community to enter. But suppose a particular community is 
changing in its character and becoming one of a sort an individual 
dislikes. “If you don’t like it here, don’t join” has more force than 
“If you don’t like it here, leave.” After a person has spent much of 
his life in a community, sent down roots, made friends, and con- 
tributed to the community, the choice to pick up and leave is a 
difficult one. Such a community’s establishing a new restriction, 
or abolishing an old one, or seriously changing its character, will 
affect its individual members in something like the way in which a 
nation’s changing its laws will affect its citizens. Shouldn’t one, 
therefore, be less willing to grant the communities such great lati- 
tude in ordering their internal affairs; shouldn’t there be limits on 
their imposing restrictions that, if imposed by a state, would con- 
stitute a violation of an individual’s rights? Friends of liberty never 
thought that the existence of America made legitimate the prac- 
tices of Czarist Russia. Why should there be a difference of kind in 
the case of the communities? 11 

Various remedies suggest themselves; I shall discuss one here. 
Anyone may start any sort of new community (compatible with 
the operation of the framework) they wish. For no one need enter 
it. (No community may be excluded, on paternalistic grounds, nor 
may lesser paternalistic restrictions geared to nullify supposed de- 
fects in people’s decision processes be imposed — for example, com- 
pulsory information programs, waiting periods.) Modifying an 
already existing community is held to be a different matter. The 
wider society may pick some preferred internal structure for com- 
munities (which respects certain rights, and so on) and may require 
that communities somehow compensate the community’s dis- 
senters for changes away from this structure, for those changes it 
chooses to make. Having described this solution to the problem, 
we see that it is unnecessary. For, to accomplish the same end indi- 
viduals need only include in the explicit terms of an agreement 
(contract) with any community they enter the stipulation that 
any member (including themselves) will be so compensated for 
deviations from a specified structure (which need not be 
society’s preferred norm) in accordance with specified condi- 
tions. (One may use the compensation to finance leaving the 
community.) 



A Framework for Utopia 


3 2 5 


TOTAL COMMUNITIES 

Under the framework, there will be groups and communities cov- 
ering all aspects of life, though limited in membership. (Not ev- 
eryone, I assume, will choose to join one big commune or federa- 
tion of communes.) Some things about some aspects of life extend 
to everyone; for example, everyone has various rights that may not 
be violated, various boundaries that may not be crossed without 
another’s consent. Some people will find this covering of all 
aspects of some person’s lives and some aspects of all person’s lives 
to be insufficient. These people will desire a doubly total rela- 
tionship that covers all people and all aspects of their lives, for ex- 
ample, all people in all their behavior (none is excluded in princi- 
ple) showing certain feelings of love, affection, willingness to help 
others; all being engaged together in some common and important 
task. 

Consider the members of a basketball team, all caught up in 
playing basketball well. (Ignore the fact that they are trying to 
win, though is it an accident that such feelings often arise when 
some unite against others?) They do not play primarily for money. 
They have a primary joint goal, and each subordinates himself to 
achieving this common goal, scoring fewer points himself than he 
otherwise might. If all are tied together by joint participation in 
an activity toward a common goal that each ranks as his most im- 
portant goal, then fraternal feeling will flourish. They will be 
united and unselfish; they will be one. But basketball players, of 
course, do not have a common highest goal; they have separate 
families and lives. Still we might imagine a society in which all 
work together to achieve a common highest goal. Under the 
framework, any group of persons can so coalesce, form a move- 
ment, and so forth. But the structure itself is diverse; it does not 
itself provide or guarantee that there will be any common goal 
that all pursue jointly. It is borne in upon one, in contemplating 
such an issue, how appropriate it is to speak of “individualism” 
and (the word coined in opposition to it) “socialism.” It goes 
without saying that any persons may attempt to unite kindred 
spirits, but, whatever their hopes and longings, none have the 
right to impose their vision of unity upon the rest. 



326 


Utopia 


UTOPIAN MEANS AND ENDS 

How do the well-known objections to “utopianism” apply to the 
conception presented here? Many criticisms focus upon Utopians’ 
lack of discussion of means for achieving their vision or their con- 
centration upon means that will not achieve their ends. In particu- 
lar, critics contend that Utopians often believe that they can bring 
about new conditions and nurture forth their particular communi- 
ties by voluntary actions within the existing structure of society. 
They believe this for three reasons. First, because they believe that 
when certain persons or groups have an interest in the continuance 
of a pattern far from the ideal one (because they occupy a privi- 
leged position in it, and benefit from specific injustices or defects 
in the actual pattern which would be eliminated in the ideal one), 
then if their cooperation is necessary in order to realize the ideal 
pattern through voluntary actions, these people can be convinced 
voluntarily to perform the actions (against their interests) which 
will aid in bringing about the ideal patterns. Through argument 
and other rational means, Utopians hope to convince people of the 
desirability and justice of the ideal pattern and of the injustice and 
unfairness of their special privileges, thereby getting them to act 
differently. Second, their critics continue, Utopians believe that 
even when the framework of the existing society allows joint vol- 
untary actions that would be sufficient to bring about a great 
change in the society by those not benefiting from defects and in- 
justices in the actual society, then those whose privileges are 
threatened will not intervene actively, violently, and coercively to 
crush the experiment and changes. Third, critics assert that Uto- 
pians are naive to think, even when the cooperation of the espe- 
cially privileged is not required and when such persons will ab- 
stain from violently interfering in the process, that it is possible to 
establish through voluntary cooperation the particular experiment 
in the very different external environment, which often is hostile 
to the goals of the experiment. How can small communities over- 
come the whole thrust of the society; aren’t isolated experiments 
doomed to failure? On this last point, we saw in Chapter 8 how a 
worker-controlled factory could be established in a free society. 
The point generalizes: there is a means of realizing various micro- 



A Framework for Utopia 327 

situations through the voluntary actions of persons in a free soci- 
ety. Whether people will choose to perform those actions is an- 
other matter. Yet, in a free system any large, popular, revolu- 
tionary movement should be able to bring about its ends by such a 
voluntary process. As more and more people see how it works, 
more and more will wish to participate in or support it. And so it 
will grow, without being necessary to force everyone or a majority 
or anyone into the pattern.* 

Even if none of these objections hold, some will object to reli- 
ance on the voluntary actions of persons, holding that people are 
now so corrupt that they will not choose to cooperate voluntarily 
with experiments to establish justice, virtue, and the good life. 
(Even though if they did choose to do so, the experiments would 
succeed in a wholly voluntary environment, or in some current 
one.) Furthermore, if they weren’t corrupt (after they’re not cor- 
rupt) they would (will) cooperate. So, the argument continues, peo- 
ple must be forced to act in accordance with the good pattern; and 
persons trying to lead them along the bad old ways must be si- 
lenced . 12 This view deserves an extended discussion, which it can- 
not be given here. Since the proponents of this view are themselves 
so obviously fallible, presumably few will choose to give them, or 
allow them to have, the dictatorial powers necessary for stamping 
out views they think are corrupt. What is desired is an organiza- 
tion of society optimal for people who are far less than ideal, op- 
timal also for much better people, and which is such that living 
under such organization itself tends to make people better and 


* There remains a reason why, though permitted, possible of success, and not 
aggressively interfered with by the actions of hostile persons, the experiment 
taking place in the different external environment might not have a fair chance 
to survive. For if the whole society does not have a voluntary framework, then 
there might be an experiment, which is in a voluntary corner of the total actual 
framework, that would succeed in a wholly voluntary framework but won’t 
succeed in the actual one. For in the actual one, while no one is forbidden to 
perform any action strictly necessary to the success of the experiment, it might 
be that some illegitimate prohibition on other actions makes people less likely 
(ranging to extremely low probability) to perform the voluntary actions com- 
prising the success of the experiment. To take an extreme example, anyone in a 
certain group might be permitted to hold a certain job, yet everyone might be 
forbidden to teach them the skills used on the job, certification of such skills 
being the only feasible way to hold the job (though some other extremely 
difficult route is left open). 



328 


Utopia 


more ideal. Believing with Tocqueville that it is only by being 
free that people will come to develop and exercise the virtues, 
capacities, responsibilities, and judgments appropriate to free 
men, that being free encourages such development, and that cur- 
rent people are not close to being so sunken in corruption as possi- 
bly to constitute an extreme exception to this, the voluntary 
framework is the appropriate one to settle upon. 

Whatever the justice of these criticisms of the views about 
means of writers in the utopian tradition, we make no assumption 
that people can be gotten voluntarily to give up privileged posi- 
tions based upon illegitimate interventions, directly or through 
government, into other people’s lives; nor do we assume that in 
the face of the permissible voluntary actions of persons refusing 
any longer to have their rights violated, those other persons whose 
illegitimate privileges are threatened will stand by peacefully. It is 
true that I do not discuss here what legitimately may be done and 
what tactics would be best in such circumstances. Readers hardly 
will be interested in such discussion until they accept the liber- 
tarian framework. 

Many particular criticisms have been made of the particular ends 
of writers in the utopian tradition and of the particular societies 
they describe. But two criticisms have seemed to apply to all. 

First, Utopians want to make all of society over in accordance 
with one detailed plan, formulated in advance and never before ap- 
proximated. They see as their object a perfect society, and hence 
they describe a static and rigid society, with no opportunity or ex- 
pectation of change or progress and no opportunity for the inhabi- 
tants of the society themselves to choose new patterns. (For if a 
change is a change for the better, then the previous state of the so- 
ciety, because surpassable, wasn’t perfect; and if a change is a 
change for the worse, the previous state of society, allowing deteri- 
oration, wasn’t perfect. And why make a change which is neutral?) 

Second, Utopians assume that the particular society they de- 
scribe will operate without certain problems arising, that social 
mechanisms and institutions will function as they predict, and 
that people will not act from certain motives and interests. They 
blandly ignore certain obvious problems that anyone with any ex- 
perience of the world would be struck by or make the most wildly 



A Framework for Utopia 329 

optimistic assumptions about how these problems will be avoided 
or surmounted. (The utopian tradition is maximax.) 

We do not detail the character of each particular community 
within the society, and we imagine the nature and composition of 
these constituent communities changing over time. No utopian 
writers actually fix all of the details of their communities. Since 
details about the framework would have to be fixed, how does our 
procedure differ from theirs? They wish to fix in advance all of the 
important social details, leaving undetermined only the trivial de- 
tails, about which they either don’t care or which raise no interest- 
ing issues of principle. Whereas, in our view, the nature of the 
various communities is very important, these questions are so im- 
portant that they should not be settled by anyone for anyone else. 
Do we, however, wish to describe in specific detail the nature of 
the framework, which is to be fixed in character and unchanging? 
Do we assume that the framework will operate without problems? I 
do wish to describe the kind of framework, namely, one which 
leaves liberty for experimentation of varied sorts. * But all of the 
details of the framework will not be set down in advance. (It 
would be easier to do this than to design in advance the details of 
a perfect society.) 

Nor do I assume that all problems about the framework are 
solved. Let us mention a few here. There will be problems about 
the role, if any, to be played by some central authority (or protec- 
tive association); how will this authority be selected, and how will 
it be ensured that the authority does, and does only, what it is 
supposed to do? The major role, as I see it, would be to enforce 
the operation of the framework — for example, to prevent some 
communities from invading and seizing others, their persons or as- 
sets. Furthermore, it will adjudicate in some reasonable fashion 


* Some writers try to justify a system of liberty as one that will lead to an 
optimal rate of experimentation and innovation. If the optimum is defined as 
that yielded by a system of liberty, the result is uninteresting, and, if an alter- 
native characterization of optimum is offered, it might be that it is best 
achieved by forcing people to innovate and experiment by taxing more heavily 
those who don’t. The system we propose leaves room for such experimentation 
but does not require it; people are free to stagnate if they wish as well as to in- 
novate. 



33 ° 


Utopia 


conflicts between communities which cannot be settled by peaceful 
means. What the best form of such a central authority is I would 
not wish to investigate here. It seems desirable that one not be 
fixed permanently but that room be left for improvements of de- 
tail. I ignore here the difficult and important problems of the con- 
trols on a central authority powerful enough to perform its appro- 
priate functions, because I have nothing special to add to the 
standard literature on federations, confederations, decentraliza- 
tion of power, checks and balances, and so on . 13 

One persistent strand in utopian thinking, as we have men- 
tioned, is the feeling that there is some set of principles obvious 
enough to be accepted by all men of good will, precise enough to 
give unambiguous guidance in particular situations, clear enough 
so that all will realize its dictates, and complete enough to cover 
all problems which actually will arise. Since I do not assume that 
there are such principles, I do not assume that the political realm 
will wither away. The messiness of the details of a political appara- 
tus and the details of how it is to be controlled and limited do not 
fit easily into one’s hopes for a sleek, simple utopian scheme. 

Apart from the conflict between communities, there will be 
other tasks for a central apparatus or agency, for example, enforc- 
ing an individual’s right to leave a community. But problems arise 
if an individual can plausibly be viewed as owing something to the 
other members of a community he wishes to leave: for example, he 
has been educated at their expense on the explicit agreement that 
he would use his acquired skills and knowledge in the home com- 
munity. Or, he has acquired certain family obligations that he will 
abandon by shifting communities. Or, without such ties, he 
wishes to leave. What may he take out with him? Or, he wishes to 
leave after he’s committed some punishable offense for which the 
community wishes to punish him. Clearly the principles will be 
complicated ones. Children present yet more difficult problems. In 
some way it must be ensured that they are informed of the range of 
alternatives in the world. But the home community might view it 
as important that their youngsters not be exposed to the knowl- 
edge that one hundred miles away is a community of great sexual 
freedom. And so on. I mention these problems to indicate a frac- 
tion of the thinking that needs to be done on the details of a frame- 



A Framework for Utopia 


33i 


work and to make clear that I do not think its nature can be 
settled finally now either.* 

Even though the details of the framework aren’t settled, won’t 
there be some rigid limits about it, some things inalterably fixed? 
Will it be possible to shift to a nonvoluntary framework permit- 
ting the forced exclusion of various styles of life? If a framework 
could be devised that could not be transformed into a nonvoluntary 
one, would we wish to institute it? If we institute such a perma- 
nently voluntary general framework, are we not, to some extent, 
ruling out certain possible choices? Are we not saying in advance 
that people cannot choose to live in a certain way; are we setting a 
rigid range in which people can move and thus committing the 
usual fault of the static Utopians? The comparable question about 
an individual is whether a free system will allow him to sell him- 
self into slavery. I believe that it would. (Other writers disagree.) 
It also would allow him permanently to commit himself never to 
enter into such a transaction. But some things individuals may 
choose for themselves, no one may choose for another. So long as 
it is realized at what a general level the rigidity lies, and what 
diversity of particular lives and communities it allows, the answer 
is, “Yes, the framework should be fixed as voluntary.” But re- 
member that any individual may contract into any particular con- 
straints over himself and so may use the voluntary framework to 
contract himself out of it. (If all individuals do so, the voluntary 
framework will not operate until the next generation, when others 
come of age.) 


HOW UTOPIA WORKS OUT 

“Well, what exactly will it all turn out to be like? In what direc- 
tions will people flower? How large will the communities be? Will 
there be some large cities? How will economies of scale operate to 


* We might of course try slightly different frameworks in different sections of 
a country, allowing each section to shift slightly their own framework, as they 
see how the others work out. Still, across the board, there will be some com- 
mon framework, though its particular character will not be permanently fixed. 



332 


Utopia 


fix the size of the communities? Will all of the communities be 
geographical, or will there be many important secondary associa- 
tions, and so on? Will most communities follow particular 
(though diverse) utopian visions, or will many communities them- 
selves be open, animated by no such particular vision?” 

I do not know, and you should not be interested in my guesses 
about what would occur under the framework in the near future. 
As for the long run, I would not attempt to guess. 

“So is this all it comes to: Utopia is a free society?” Utopia is 
not just a society in which the framework is realized. For 
who could believe that ten minutes after the framework was 
established, we would have utopia? Things would be no different 
than now. It is what grows spontaneously from the individ- 
ual choices of many people over a long period of time that will 
be worth speaking eloquently about. (Not that any particular 
stage of the process is an end state which all our desires are aimed 
at. The utopian process is substituted for the utopian end state of 
other static theories of utopias.) Many communities will achieve 
many different characters. Only a fool, or a prophet, would try to 
prophesy the range and limits and characters of the communities 
after, for example, 150 years of the operation of this framework. 

Aspiring to neither role, let me close by emphasizing the dual 
nature of the conception of utopia being presented here. There is 
the framework of utopia, and there are the particular communities 
within the framework. Almost all of the literature on utopia is, ac- 
cording to our conception, concerned with the character of the 
particular communities within the framework. The fact that I have 
not propounded some particular description of a constituent com- 
munity does not mean that (I think) doing so is unimportant, or 
less important, or uninteresting. How could that be? We live in 
particular communities. It is here that one’s nonimperialistic vi- 
sion of the ideal or good society is to be propounded and realized. 
Allowing us to do that is what the framework is for. Without such 
visions impelling and animating the creation of particular commu- 
nities with particular desired characteristics, the framework will 
lack life. Conjoined with many persons’ particular visions, the 
framework enables us to get the best of all possible worlds. 

The position expounded here totally rejects planning in detail, in 
advance, one community in which everyone is to live yet sympa- 



A Framework for Utopia 


333 


thizes with voluntary utopian experimentation and provides it 
with the background in which it can flower; does this position fell 
within the utopian or the antiutopian camp? My difficulty in 
answering this question encourages me to think the framework 
captures the virtues and advantages of each position. (If instead it 
blunders into .combining the errors, defects, and mistakes of both 
of them, the filtering process of free and open discussion will make 
this clear.) 


UTOPIA AND THE MINIMAL STATE 

The framework for utopia that we have described is equivalent to 
the minimal state. The argument of this chapter starts (and stands) 
independently of the argument of Parts I and II and converges to 
their result, the minimal state, from another direction. In our 
discussion in this chapter we did not treat the framework as more 
than a minimal state, but we made no effort to build explicitly 
upon our earlier discussion of protective agencies. (For we wanted 
the convergence of two independent lines of argument.) We need 
not mesh our discussion here with our earlier one of dominant pro- 
tective agencies beyond noting that whatever conclusions people 
reach about the role of a central authority (the controls on it, and 
so forth) will shape the (internal) form and structure of the protec- 
tive agencies they choose to be the clients of. 

We argued in Part I that the minimal state is morally legiti- 
mate; in Part II we argued that no more extensive state could be 
morally justified, that any more extensive state would (will) vio- 
late the rights of individuals. This morally favored state, the only 
morally legitimate state, the only morally tolerable one, we now 
see is the one that best realizes the utopian aspirations of untold 
dreamers and visionaries. It preserves what we all can keep from 
the utopian tradition and opens the rest of that tradition to our in- 
dividual aspirations. Recall now the question with which this 
chapter began. Is not the minimal state, the framework for utopia, 
an inspiring vision? 

The minimal state treats us as inviolate individuals, who may 
not be used in certain ways by others as means or tools or in- 



334 


Utopia 


struments or resources; it treats us as persons having individual 
rights with the dignity this constitutes. Treating us with respect 
by respecting our rights, it allows us, individually or with whom 
we choose, to choose our life and to realize our ends and our con- 
ception of ourselves, insofar as we can, aided by the voluntary co- 
operation of other individuals possessing the same dignity. How 
dare any state or group of individuals do more. Or less. 



NOTES 


CHAPTER i / Why State-of-Nature Theory? 

1. See Norwood Russell Hanson, Patterns of Discovery (New York: Cam- 
bridge University Press, 1958), pp. 1 19— 120, and his quotation from Heisen- 
berg (p. 212). Though the X (color, heat, and so on) of an object can be 
explained in terms of its being composed of parts of certain X-quality (colors in 
certain array, average heat of parts, and so on), the whole realm of X cannot be 
explained or understood in this manner. 

2. Carl G. Hempel, Aspects of Scientific Explanation (New York: The Free 
Press, 1965), pp. 247-249, 273-278, 293-295, 338. 

CHAPTER 2 / The State of Nature 

1. John Locke, Two Treatises of Government , 2nd ed., ed. Peter Laslett (New 
York: Cambridge University Press, 1967). Unless otherwise specified, all refer- 
ences are to the Second Treatise. 

2. On the difficulties of binding oneself into a position, and on tacit agree- 
ments, see Thomas Schelling’s The Strategy of Conflict (Cambridge, Mass.: Har- 
vard University Press, i960). 

3. Others may punish, without his call; see the further discussion in Chap- 
ter 5 of this book. 

4. We shall see (p. 18) how money may exist in a state of nature without an 
explicit agreement that establishes a medium of exchange. Private protective 
services have been proposed and discussed by various writers in the in- 
dividualist-anarchist tradition. For background, see Lysander Spooner, NO 
TREASON: The Constitution of No Authority (1870), Natural Law, and A Letter to 
Grover Cleveland on His False Inaugural Address; The Usurpation and Crimes of Law- 
makers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People 
(Boston: Benjamin R. Tucker, 1886), all republished in The Collected Works of 
Lysander Spooner, 6 vols. (Weston, Mass.: M & S Press, 1971)- Benjamin R. 
Tucker discusses the operation of a social system in which all protective func- 
tions are privately supplied in Instead of a Book (New York, 1893), pp. 14, 25, 
32—33, 36, 43, 104, 326—329, 340—341, many passages of which are reprinted 
in his Individual Liberty, ed. Clarence Lee Swartz (New York, 1926). It cannot 
be overemphasized how lively, stimulating, and interesting are the writings and 
arguments of Spooner and Tucker, so much so that one hesitates to mention any 
secondary source. But see also James J. Martin’s able and interesting Men 


335 



33 <S 


Notes 


Against the State: The Expositors of Individualist Anarchism in America, 1827—1908 
for a description of the lives and views of Spooner, Tucker, and ocher writers in 
their tradition. See also the more extended discussion of the private protection 
scheme in Francis Tandy, Voluntary Socialism (Denver: F. D. Tandy, 1896), pp. 
62—78. A critical discussion of the scheme is presented in John Hospers, Liber- 
tarianism (Los Angeles: Nash, 1971), chap. 11. A recent proponent is Murray 
N. Rothbard, who in Power and Market (Menlo Park, Calif.: Institute for 
Humane Studies, Inc., 1970), pp. 1—7, 120-123, briefly describes how he 
believes the scheme might operate and attempts to meet some objections to it. 
The most detailed discussion I know is in Morris and Linda Tannehill, The 
Market for Liberty (Lansing, Mich.: privately printed, 1970), especially pp. 
65—115. Since I wrote this work in 1972, Rothbard has more extensively pre- 
sented his views in For a New Liberty (New York: Macmillan, 1973), chaps. 3 
and 1 1 , and David Friedman has defended anarcho-capitalism with gusto in The 
Machinery of Freedom (New York: Harper & Row, 1973), pt. III. Each of these 
works is well worth reading, but neither leads me to revise what I say here. 

5. See I. B. Singer, In My Father's Court (New York: Farrar, Strauss, and 
Giroux, 1966); for a recent “counterculture” example see WIN Magazine, No- 
vember 1, 1971, pp. 11— 17. 

6. Exercise for the reader: describe how the considerations discussed here 
and below lead to each geographical area having one agency or a federal struc- 
ture of agencies dominant within it, even if initially the area contains a group of 
agencies over which “wins almost all the battles with” is a connected relation 
and a non transitive one. 

7. See Kenneth R. Boulding, Conflict and Defense (New York: Harper, 
1962), chap. 12. 

8. For an indication of the complexity of such a body of rules, see American 
Law Institute, Conflict of Laws; Second Restatement of the Law, Proposed Official 
Draft, 1967—1969. 

9. See Yale Brozen, “Is Government the Source of Monopoly?” The Inter- 
collegiate Review, 5, no. 2 (1968—69), 67—78; Fritz Machlup, The Political Econ- 
omy of Monopoly (Baltimore: Johns Hopkins Press, 1952). 

10. Locke assumed that the preponderant majority, though not all, of the 
persons living in the state of nature would accept the law of nature. See Richard 
Ashcroft, “Locke’s State of Nature,” American Political Science Review, September 
1968, pp. 898-915, especially pt. I. 

1 1 . See Morris and Linda Tannehill, The Market for Liberty; on the impor- 
tance of voluntary cooperation to the functioning of governments see, for ex- 
ample, Adam Roberts, ed., Civilian Resistance as National Defense (Baltimore: 
Penguin Books, 1969) and Gene Sharp, The Politics of Non-Violent Action (Bos- 
ton: Porter Sargent, 1973). 

12. See Ludwig Von Mises, The Theory of Money and Credit, 2nd ed. (New 
Haven, Conn.: Yale University Press, 1953), pp. 30-34, from which I have 
taken this story. 

13. For the beginnings of a treatment of issues that an account of invisible- 
hand explanations must consider, see F. A. Hayek’s essays, “Notes on the 
Evolution of Systems of Rules of Conduct" and “The Results of Human Action 
but not of Human Design,” in his Studies in Philosophy, Politics, and Economics 
(Chicago: University of Chicago Press, 1967), as well as Chapters 2 and 4 of his 



Notes 


337 


Constitution of Liberty (Chicago: University of Chicago Press, i960). See also the 
discussion of design devices and filter devices in Chapter 10 of this book. To see 
how close we are to the beginnings, notice that nothing said herein explains 
why not every scientific explanation (that does not appeal to intentions) of a 
functional relationship between variables is an invisible-hand explanation. 

14. See Max Weber, Theory of Social and Economic Organization (New York: 
Free Press, 1947), p. 156 ; and Max Rheinstein, ed., Max Weber on Law in 
Economy and Society (Cambridge, Mass.: Harvard University Press, 1954), Ch. 13. 

15. Compare H. L. A. Hart’s treatment of the parallel problem for the exis- 
tence of a legal system in The Concept of Law (Oxford: The Clarendon Press, 
1961), pp. 1 13-120. 

16. On the claim that physicians do this, see Reuben Kessell, “Price Dis- 
crimination in Medicine,” Journal of Law and Economics, 1, no. 1 (October 
1958), 20-53. 

CHAPTER 3 / Moral Constraints and the State 

1 . Here and in the next section I draw upon and amplify my discussion of 
these issues in footnote 4 of “On the Randian Argument,” The Personalist, 
Spring 1971. 

2. For a clear statement that this view is mistaken, see John Rawls, A 
Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 30, 
565-566. 

3. Which does which? Often a useful question to ask, as in the following: 

— “What is the difference between a Zen master and an analytic philoso- 
pher?” 

— “One talks riddles and the other riddles talks.” 

4. Groundwork of the Metaphysic of Morals. Translated by H. J. Paton, The 
Moral Law (London: Hutchinson, 1956), p. 96. 

5. See John Rawls, A Theory of Justice, sects. 5, 6, 30. 

6. See Gilbert Harman, “The Inference to the Best Explanation,” Philo- 
sophical Review, 1965, pp. 88—95, an d Thought (Princeton, N.J.: Princeton Uni- 
versity Press, 1973), chaps. 8, 10. 

7. See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and 
Public Affairs, 1, no. 2 (Fall 1971), 52-53. Since my discussion was written, 
John Hospers has discussed similar issues in a two-part essay, “Some Problems 
about Punishment and the Retaliatory Use of Force,” Reason, November 1972 
and January 1973. 

8. Recall the Yiddish joke: 

— “Life is so terrible; it would be better never to have been conceived.” 

— “Yes, but who is so fortunate? Not one in a thousand.” 

9. “Is there any reason why we should be suffered to torment them? Not any 
that I can see. Are there any why we should not be suffered to torment them? 
Yes, several. ... It may come one day to be recognized, that the number of 
the legs, the villosity of the skin, or the termination of the os sacrum, are 
reasons equally insufficient for abandoning a sensitive being to the same fate. 
What else is it that should trace the insuperable line? Is it the faculty of reason, 
or, perhaps the faculty of discourse? But a full grown horse or dog is beyond 
comparison a more rational, as well as a more conversible animal, than an infant 



338 


Notes 


of a day, or a week, or even a month old. But suppose this case were otherwise, 
what would it avail? The question is not, Can they reason? nor can they talk? 
but, Can they suffer?” Jeremy Bentham, An Introduction to the Principles of Morals 
and Legislation, chap. 17, sect. 4, n. 1. Before these words quoted, Bentham 
discusses the eating of animals, which he holds to be permissible because the 
animals don’t have long-protracted anticipations of future misery through 
knowing they are going to die, and because the death people inflict on them is 
less painful than the one they would suffer in the course of nature. 

10. This point was suggested to me by Mr. Thom Krystofiak. 

11. At least one philosopher has questioned whether we have good reason to 
weight animals’ interests less than our own and to impose limitations less strin- 
gent on their treatment than on the treatment of people. See Leonard Nelson, 
System of Ethics (New Haven, Conn.: Yale University Press, 1956), sects. 66, 67. 
After my discussion of animals was written, this issue was raised in an interest- 
ing essay by Peter Singer, “Animal Liberation,” New York Review of Books, April 
5, 1973, pp. 17—21. Unfortunately, Singer treats as a difficult issue whether 
rats may be killed to be stopped from biting children. It would be useful here 
to apply principles about response to innocent threats (see page 35 above). 

CHAPTER 4 / Prohibition, Compensation, and Risk 

1. Contrast this with Kant’s view that “everyone may use violent means to 
compel another to enter into a juridical state of society." The Metaphysical Ele- 
ments of Justice, trans. John Ladd (Indianapolis: Bobbs-Merrill, 1965), sect. 44; 
and see our further discussion in Chapter 6. 

2. Rothbard seems to favor this alternative. "Suppose that Smith, convinced 
of Jones’ guilt, 'takes the law into his own hands’ rather than going through the 
court procedure? What then? In itself this would be legitimate and not punish- 
able as a crime, since no court or agency may have the right, in a free society, 
to use force for defense beyond the selfsame right of each individual. However, 
Smith would then have to face the consequence of a possible countersuit and 
trial by Jones, and he .himself would have to face punishment as a criminal if 
Jones is found to be innocent.” Power and Market (Menlo Park, Calif.: Institute 
for Humane Studies Inc, 1970), p. 197, n. 3. 

3. See also the symposium “Is Government Necessary?” The Personalist, 
Spring 1971. 

4. Related issues that natural-rights theories must cope with are interest- 
ingly treated in Erving Goffman, Relations in Public (New York: Basic Books, 
1971), chaps. 2, 4. 

5. If Locke would allow special paternalistic restrictions, then perhaps a per- 
son legitimately could give another the permission and the right to do some- 
thing he may not do to himself: for example, a person might permit a doctor to 
treat him according to the doctor’s best judgment, though lacking the right to 
treat himself. 

6. These questions and our subsequent discussion are repeated (with stylistic 
improvements) from a February 1972 draft circulated under the title of Part I of 
this book. Independently, Guido Calabresi and A. Douglas Melamed, “Prop- 
erty Rules, Liability Rules, and Inalienability,” Harvard Law Review, 85, no. 6 



Notes 


339 


(April 1972), 1089—1128, discuss similar questions and some themes treated 
here. 

7. For example, we might suppose that each person’s net assets are recorded 
in some central computer, and that each has a cash balance sufficient to pay off 
any claim against him. (We shall see later how interesting problems arise when 
we relax this latter assumption.) Purchases involve adding the price to the 
seller’s balance while subtracting it from the purchaser’s. A judgment is upheld 
against a person by transferring an amount from his account to his victim’s; 
there is no possibility of refusing to pay. We mention this to sharpen our ques- 
tion, not to recommend the computerized system. 

8. See Peter Newman, The Theory of Exchange (Englewood Cliffs, N.J.: Pren- 
tice-Hall, 1965), chap. 3. 

9. On the more usual role of middlemen see Armen Alchian and W. R. 
Allen, University Economics, 2nd ed. (Belmont, Calif.: Wadsworth, 1967), pp. 
29-37, 40. 

10. As intensified by the uncertain occurrence of the event? See Martin 
Seligman et al., “Unpredictable and Uncontrollable Aversive Events,” in Robert 
Brush, ed., Aversive Conditioning and Learning, Academic Press, 1971, pp. 
347—400, especially Section IV. 

11. A rationale of intermediate depth would be provided by the intermedi- 
ate possibility that any particular fear is removable in some social environment 
or other, though not all fears together. We should note that someone who 
grants that some specific fears are not removable by a change of the social en- 
vironment might still wonder whether these fears weren’t too irrational to be 
catered to by social policy, though this would be hard to defend in the case 
of something like fear of bodily harm. 

12. See H. L. A. Hart’s essay, “Legal Responsibility and Excuses,” in 
Punishment and Responsibility (New York: Oxford University Press, 1968), chap. 
2. The argument cannot be extended from punishment to compensation, for 
these costs must fall somewhere. On such questions, see the discussion in 
Walter Blum and Harry Kalven, Jr., Public Law Perspectives on a Private Law 
Problem: Auto Compensation Plans (Boston: Little, Brown, 1965). 

13. A very wide net indeed would be cast by a prohibition on any act whose 
risked consequence would produce fear if certainly expetted, which could be 
part of a totality of similar acts that produces fear, where whether or not the to- 
tality produces fear depends upon how many similar acts it contains. 

14. An Anatomy of Values (Cambridge, Mass.: Harvard University Press, 
1970), chap. 9. 

1 5 . The economically most sophisticated discussion of criteria for determin- 
ing the amount of compensation for loss of life is E. J. Mishan, “Evaluation of 
Life and Limb: A Theoretical Approach,” Journal of Political Economy, 1971, pp. 
687—705. Unfortunately, Mishan’s procedure involves double counting, for the 
“indirect or derivative risks” (pp. 699—705) of a person’s death, including the 
financial or psychic loss to the others, already will be included, via his own con- 
cern for them, in the direct involuntary risk as Mishan explains this. For com- 
pensation is to be paid for the direct involuntary risk in an amount sufficient to 
make the person in question willing to bear that risk of death. On the assump- 
tion that people have a right to commit suicide, quit their jobs, and so forth, if 



340 


Notes 


the victim himself isn’t concerned about these indirect or derivative risks, they 
don't seem a cost that may properly be imposed upon another who risks his life 
or causes his death. After all, could these costs be imposed against the person 
himself or his estate if he committed suicide or quit his job? If, on the other 
hand, he is concerned about these indirect or derivative risks, they (as much as 
is proper of them) will be included, via his concern for them, in the compensa- 
tion of the direct risk. To this criticism must be added, however, the additional 
complication that a victim may have obligations to others, which he doesn’t care 
about but which he would carry out if he were alive, perhaps due to social or 
legal pressure. The theoretical determination of appropriate compensation would 
have to include the indirect risks that fall upon persons to whom the victim is 
obligated though indifferent. 

1 6. I owe this objection to viewing the condition as sufficient to Ronald 
Hamowy. 


CHAPTER 5 / The State 

1. Herbert Hatt, “Are There Any Natural Rights?” Philosophical Review, 

1 955 ; John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University 
Press, 1971), sect. 18. My statement of the principle stays close to Rawls’. The 
argument Rawls offers for this principle constitutes an argument only for the 
narrower principle of fidelity (bona fide promises are to be kept). Though if 
there were no way to avoid “can’t get started” difficulties about the principle of 
fidelity (p. 349) other than by appealing to the principle of fairness, it would be 
an argument for the principle of fairness. 

2. Hart, “Are There Any Natural Rights?” 

3. I have formulated my remarks in terms of the admittedly vague notion of 
there being a "point" to certain kinds of rights because this, I think, gives 
Hart’s argument its most plausible construction. 

4. I have skirted making the institution one that you didn’t get a fair say in 
setting up or deciding its nature, for here Rawls would object that it doesn’t 
satisfy his two principles of justice. Though Rawls does not require that every 
microinstitution satisfy his two principles of justice, but only the basic structu- 
ture of the society, he seems to hold that a microinstitution must satisfy these 
two principles if it is to give rise to obligations under the principle of fairness. 

5. The acceptability of our procedures to us may depend on our not know- 
ing this information. See Lawrence Tribe, “Trial by Mathematics,” Harvard 
Law Review, 1971. 

6. It is a consequence of Locke’s view that each citizen is in a state of nature 
with respect to the highest appeal procedure of the state, since there is no fur- 
ther appeal. Hence he is in a state of nature with respect to the state as a whole. 
Also, citizens have “a liberty to appeal to Heaven, whenever they judge the 
cause of sufficient moment. And therefore, though the people cannot be judge, 
so as to have by the constitution of that society any superior power, to deter- 
mine and give effective sentence in the case; yet they have, by a Law antecedent 
and paramount to all positive laws of men, reserved that ultimate determination 
to themselves, which belongs to all mankind, where there lies no appeal on 
earth, viz. to judge whether they have just cause to make their appeal to 
Heaven. And this judgment they cannot part with. . . .” Two Treatises of Gov- 



Notes 


34i 


emment, ed. Peter Laslett (New York: Cambridge University Press, 1967), II, 
sect. 168; see also sects. 20, 21, 90—93, 176, 207, 241, 242. 

7. The considerations of this paragraph, though I find them powerful, do 
not completely remove my uneasiness about the position argued in the text. 
The reader who wishes to claim, against this book, that special moral principles 
emerge with regard to the state might find this issue a fruitful one to press. 
Though if I do make a mistake here, it may be one concerning responsibility 
rather than concerning the state. 

8. May someone in a position to know say that he hasn’t gotten around to 
examining the information, and so he will defend himself against anyone’s now 
coming to apply the procedure to him? Presumably not, if the procedure is well 
known and not of recent origin. But even here, perhaps, a gift of some extra 
time may be made to this person. 

9. The category of feared exaction of compensation will be small but non- 
empty. Exacting compensation may involve activities people fear because it in- 
volves compelling them to do compensatory forced labor; might it even be the 
direct imposition of a feared consequence, because only this can raise the victim 
to his previous indifference curve? 

10. Gilbert Harman proposes simple intertranslatability as a criterion of 
merely verbal difference in “Quine on Meaning and Existence,” Review of Meta- 
physics, 21, no. 1 (September 1967). 7 /we wish to say that two persons with the 
same beliefs who speak different languages differ only verbally, then Harman’s 
criterion will include as “simple,” translations as complex as those between lan- 
guages. Whatever is to be decided about such cases, the criterion serves in the 
present instance. 

1 1 . May the prohibitors charge the prohibited party for the other costs to 
him of performing the activity were it unprohibited, such as time, energy, and 
so on? 

12. Here, as at all other places in this essay, “harm” refers only to border 
crossings. 

13. Lawrence Krader, Formation of the State (Englewood Cliffs, N.J.: Pren- 
tice-Hall, 1968), pp. 21—22. 

CHAPTER 6 / Further Considerations on the Argument 
for the State 

1 . Locke holds that men may put themselves in a civil society or protective 
association for, among other things, "a greater security against any that are not 
of it. This any number of men may do, because it injures not the freedom of the 
rest; they are left as they were in the liberty of the state of nature.” Two Treatises 
of Government, ed. Peter Laslett (New York: Cambridge University Press, 1967), 
II, sect. 95. (All further references in this chapter are to the Second Treatise, 
unless otherwise noted.) But though it does not injure their freedom by reducing 
the rights which they have, it does injure their security by making it more 
likely that they will suffer injustice because they will be unable effectively to 
defend their own rights. Elsewhere Locke recognizes this point, discussing it in 
the context of arbitrary acts, though it applies as well to persons acting accord- 
ing to fixed and publicly specified rules: “He being in a much worse condition 
who is exposed to the arbitrary power of one man, who has the command of 



342 


Notes 


100,000, than he that is exposed to the arbitrary power of 100,000 single men” 
(sect. 137). 

2. For a discussion of the applicability of dominance principles to some 
puzzling cases, see my “Newcomb’s Problem and Two Principles of Choice,” in 
Essays in Honor of C. G. Hempel, ed. N. Rescher et al. (Holland: Reidel, 1969), 
pp. 114—146; also Martin Gardner’s "Mathematical Games” column, Scientific 
American, July 1973, pp. 104— 109, and my guest mathematical games col- 
umn, Scientific American, March 1974, pp. 102—108. 

3. On the “prisoners’ dilemma,” see R. D. Luce and H. Raiffa, Games and 
Decisions (New York: Wiley, 1957), pp. 94—102. 

4. On related issues see Thomas Schelling’s essay, “The Reciprocal Fear of 
Surprise Attack,” The Strategy of Conflict (Cambridge, Mass.: Harvard University 
Press, i960), chap. 9. 

5. Since nothing is beyond the leaders of states, it would not be surprising if 
a nation A prohibited nation B from arming and incorporated B into A, 
claimed that this provided B’s citizens with protection, and thus constituted a 
recognition and fulfillment of A’s obligations to compensate them for the disad- 
vantages the prohibition had imposed upon them. A would claim to be acting 
permissibly. It is left as an exercise for the reader to state why this cloak won’t 
cover such aggression. 

6. This is not to say that the constitutional limits on free speech should be 
narrower than they are. But since responsibility can continue through the 
choices of others, perhaps universities properly may impose more stringent limi- 
tations on their faculty, occupying a position of special aura and prestige (do 
they still?), in their dealings with the students at their own universities. (It 
might also be held, in support of an institutional standard more stringent than 
the constitutional guarantee in this area, that the vocation of faculty members 
requires them to take ideas and words with especially great seriousness.) So 
perhaps something like the following narrow principle is defensible: If there are 
actions which it would be legitimate for a university to punish or discipline 
students for doing, and which it would be legitimate for a university to punish 
or discipline faculty members for doing, then if a faculty member attempts to 
and intends to get students at his university to perform these actions and 
succeeds (as he had intended), then it would be legitimate for the university to 
discipline or punish the faculty member for this. I ignore here questions about 
what would be appropriate if the faculty member tries but through no fault or 
virtue of his own fails. I also ignore the messy questions about what channels of 
persuasion are covered by the principle: for example, speeches on campus out- 
side class, but not a column written in a local town or city newspaper. 

7. I owe these questions to Jerrold Katz. 

8. “But because no political society can be, nor subsist, without having in 
itself the power to preserve the property and, in order thereunto, punish the of- 
fenses of all those of that society, there and there only is political society where 
everyone of the members has quitted his natural power to judge of and punish 
breaches of the law of nature, resigned it up into the hands of the community in 
all cases that exclude him not from appealing for protection to the law es- 
tablished by it” (sect. 87, italics mine). Does Locke mean that the existence of 
independents prevents there from being political society in the area, or that the 
independents are not members of a political society which does exist in the area? 



Notes 


343 


(Compare also sect. 89, which does not resolve the issue.) Locke holds that 
“absolute monarchy, which by some men is counted the only government in the 
world, is indeed inconsistent with civil society, and so can be no form of civil 
government at all” (which seems to use the requirements that all be included) 
and goes on to say, “Wherever any persons are who have not such an authority 
to appeal to for the decision of any difference between them, there those persons 
are still in the state of nature; and so is every absolute prince, in respect of those 
who are under his dominion” (sect. 90). 

9. Sections 74—76, 105—106, and 112 of the Second Treatise might incline 
one to think that our situation does contain a compact, though note that Locke 
uses “consent” in these sections rather than “compact.” Other sections, and the 
main thrust of the work, incline one in the opposite direction and have so 
inclined Locke’s commentators. One might also, in considering Locke’s discus- 
sion of money (sects. 36, 37, 47, 48, 50, 184), play down phrases like “inven- 
tion of money,” “agreed that a little piece of yellow metal . . . should be 
worth,” “by mutual consent,” “phantastical imaginary value,” and so on, and 
instead emphasize “tacit agreement,” so as to try to get Locke’s description to 
fit the story we have told in Chapter 2. 

10. The distinction between “entitlement” and “desert” is discussed by Joel 
Feinberg in his essay, "Justice and Personal Desert,” reprinted in his Doing and 
Deserving (Princeton, N.J.: Princeton University Press, 1970), pp. 55—87. If le- 
gitimacy were tied to desert and merit rather than to entitlement (which it 
isn't), then a dominant protective agency might have it by meriting its domi- 
nant market position. 

11. Statement 1 below expresses a's being entitled to wield the power, 
whereas a’s being entitled to be the one that wields that power is expressed by 
statement 2 or 3. 

1 . a is the individual x such that x wields power P and x is entitled to wield P, 
and P is (almost) all the power there is. 

2 . a is entitled to be the individual x such that x wields power P and x is entitled 
to wield P, and P is (almost) all the power there is. 

3. a is entitled to be the individual x such that x wields power P and x is entitled 
to wield P and x is entitled that P be (almost) all the power there is. 

12. Rothbard imagines that somehow, in a free society, “the decision of any 
two courts will be considered binding, i.e., will be the point at which the court 
will be able to take action against the party adjudged guilty.” Power and Market 
(Menlo Park, Calif.: Institute for Humane Studies, 1970), p. 5. Who will con- 
sider it binding? Is the person against whom the judgment goes morally bound 
to go along with it? (Even if he knows that it is unjust, or that it rests on a fac- 
tual mistake?) Why is anyone who has not in advance agreed to such a two- 
court principle bound by it? Does Rothbard mean anything other than that he 
expects agencies won’t act until two independent courts (the second being an 
appeals court) have agreed? Why should it be thought that this fact tells us any- 
thing about what it is morally permissible for anyone to do, or tells us anything 
about the authoritative settling of disputes? 

13. The contract-like view would have to be stated carefully, so as not to 
allow unfairly finding a corrupt judge guilty of crimes. 

14. See David Lewis, Convention (Cambridge, Mass.: Harvard University 



344 


Notes 


Press, 1969), for a philosophical elaboration of Schelling’s notion of a coordina- 
tion game: note especially Lewis’ discussion of social contracts in Chapter 3. 
Our account of the state involves less intentional coordination of action with 
some other individuals than does Mises’ account of a medium of exchange de- 
scribed above in Chapter 2. 

Interesting and important questions we cannot pursue here are the extent to 
which, and under what conditions, clients who give a protective agency whatso- 
ever special legitimacy it possesses bear responsibility for its violations of others’ 
rights, which they did not ''authorize" it to do; and what they must do to avoid 
being responsible for this. (See Hugo Bedau, “Civil Disobedience and Personal 
Responsibility for Injustice,” The Monist, 54 (October 1970), 517—535. 

15. For the first view see Rothbard, Man, Economy, and State, vol. 2 (Los 
Angeles: Nash, 1971), p. 654; for the second see, for example, Ayn Rand, 
“Patents and Copyrights,” in Capitalism: the Unknown Ideal (New York: New 
American Library, 1966), pp. 125— 129. 

16. As we have construed the rationale underlying such systems, at any rate. 
Alan Dershowitz has reminded me that it is possible that some alternative 
nonpreventive reasons for prohibiting private enforcement of justice might be 
produced. Were such reasons to survive scrutiny, it would be incorrect to make 
the strong claim that all legal systems that prohibit private enforcement of jus- 
tice presuppose the legitimacy of some preventive considerations. 

CHAPTER 7 / Distributive Justice 

1 . The reader who has looked ahead and seen that the second part of this 
chapter discusses Rawls’ theory mistakenly may think that every remark or 
argument in the first part against alternative theories of justice is meant to 
apply to, or anticipate, a criticism of Rawls’ theory. This is not so; there are 
other theories also worth criticizing. 

2. See, however, the useful book by Boris Bittker, The Case for Black Repara- 
tions (New York: Random House, 1973). 

3. F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago 
Press, i960), p. 87. 

4. This question does not imply that they will tolerate any and every pat- 
terned distribution. In discussing Hayek’s views, Irving Kristol has recently 
speculated that people will not long tolerate a system that yields distributions 
patterned in accordance with value rather than merit. (" ‘When Virtue Loses 
All Her Loveliness’ — Some Reflections on Capitalism and ‘The Free Society,’ 
The Public Interest, Fall 1970, pp. 3—15.) Kristol, following some remarks of 
Hayek’s, equates the merit system with justice. Since some case can be made for 
the external standard of distribution in accordance with benefit to others, we 
ask about a weaker (and therefore more plausible) hypothesis. 

5. Varying situations continuously from that limit situation to our own 
would force us to make explicit the underlying rationale of entitlements and to 
consider whether entitlement considerations lexicographically precede the con- 
siderations of the usual theories of distributive justice, so that the slightest strand 
of entitlement outweighs the considerations of the usual theories of distributive 
justice. 



Notes 


345 


6. See the selection from John Henry MacKay’s novel, The Anarchists, re- 
printed in Leonard Krimmerman and Lewis Perry, eds., Patterns of Anarchy 
(New York: Doubleday Anchor Books, 1966), in which an individualist anar- 
chist presses upon a communist anarchist the following question: "Would you, 
in the system of society which you call ‘free Communism’ prevent individuals 
from exchanging their labor among themselves by means of their own medium 
of exchange? And further: Would you prevent them from occupying land for 
the purpose of personal use?” The novel continues: “[the] question was not to 
be escaped. If he answered 'Yes!' he admitted that society had the right of con- 
trol over the individual and threw overboard the autonomy of the individual 
which he had always zealously defended; if on the other hand, he answered ‘No!’ 
he admitted the right of private property which he had just denied so emphati- 
cally. . . . Then he answered ‘In Anarchy any number of men must have the 
right of forming a voluntary association, and so realizing their ideas in practice. 
Nor can I understand how any one could justly be driven from the land and 
house which he uses and occupies . . . every serious man must declare himself : 
for Socialism, and thereby for force and against liberty, or for Anarchism, and 
thereby for liberty and against force.’ ” In contrast, we find Noam Chomsky 
writing, "Any consistent anarchist must oppose private ownership of the means 
of production,” “the consistent anarchist then . . . will be a socialist . . . of a 
particular sort.” Introduction to Daniel Guerin, Anarchism: From Theory to Prac- 
tice (New York: Monthly Review Press, 1970), pages xiii, xv. 

7. Collective Choice and Social Welfare, Holden-Day, Inc., 1970, chaps. 6 
and 6 *. 

8. Oppression will be less noticeable if the background institutions do not 
prohibit certain actions that upset the patterning (various exchanges or transfers 
of entitlement), but rather prevent them from being done, by nullifying them. 

9. See Gregory Vlastos, “The Individual as an Object of Love in Plato” in 
his Platonic Studies (Princeton: Princeton University Press, 1973), pp. 3—34. 

10. Further details which this statement should include are contained in my 
essay “Coercion,” in Philosophy, Science, and Method, ed. S. Morgenbesser, P. 
Suppes, and M. White (New York: St. Martin, 1969). 

1 1 . On the themes in this and the next paragraph, see the writings of 
Armen Alchian. 

12. Compare this with Robert Paul Wolff’s “A Refutation of Rawls’ 
Theorem on Justice, "Journal of Philosophy, March 31, 1966, sect. 2. Wolff’s 
criticism does not apply to Rawls’ conception under which the baseline is fixed 
by the difference principle. 

13. I discuss overriding and its moral traces in “Moral Complications and 
Moral Structures,” Natural Law Forum, 1968, pp. 1—50. 

14. Does the principle of compensation (Chapter 4) introduce patterning 
considerations? Though it requires compensation for the disadvantages imposed 
by those seeking security from risks, it is not a patterned principle. For it seeks 
to remove only those disadvantages which prohibitions inflict on those who 
might present risks to others, not all disadvantages. It specifies an obligation on 
those who impose the prohibition, which stems from their own particular acts, 
to remove a particular complaint those prohibited may make against them. 

15. Cambridge, Mass.: Harvard University Press, 1971- 



346 


Notes 


1 6. Rawls, Theory of Justice, p. 4. 

17. See Milton Friedman, Capitalism and Freedom (Chicago: University of 
Chicago Press, 1962), p. 165. 

18. On the question of why the economy contains firms (of more than one 
person), and why each individual does not contract and recontract with others, 
see Ronald H. Coase, “The Nature of the Firm,” in Readings in Price Theory, ed. 
George Stigler and Kenneth Boulding (Homewood, 111.: Irwin, 1952); and 
Armen A. Alchian and Harold Demsetz, “Production, Information Costs and 
Economic Organization,” American Economic Review, 1972, 777—795. 

19. We do not, however, assume here or elsewhere the satisfaction of those 
conditions specified in economists’ artificial model of so-called “perfect competi- 
tion.” One appropriate mode of analysis is presented in Israel M. Kirzner, 
Market Theory and the Price System (Princeton, N.J.: Van Nostrand, 1963); see 
also his Competition and Entrepreneurship (Chicago: University of Chicago Press, 
1973)- 

20. See Marc Blaug, Economic Theory in Retrospect (Homewood, 111.: Irwin, 
1968), chap. 11, and the references cited therein. For a recent survey of issues 
about the marginal productivity of capital, see G. C. Harcourt, “Some Cam- 
bridge Controversies in the Theory of Capital," Journal of Economic Literature, 7, 
no. 2 (June 1969), 369—405. 

21. Rawls, Theory of Justice, p. 12. 

22. Rawls, Theory of Justice, pp. 14—15. 

23. Rawls, Theory of Justice, sect. 16, especially p. 98. 

24. Here we simplify the content of 5, but not to the detriment of our 
present discussion. Also, of course, beliefs other than 5, when conjoined with 3 
would justify the inference to 4; for example belief in the material conditional 
“If 3, then 4.” It is something like 5, though, that is relevant to our discussion 
here. 

25. Rawls, Theory of Justice, p. 15. 

26. Rawls, Theory of Justice, p. 103. 

27. But recall the reasons why using magnitudes of entitlement does not 
capture accurately the entitlement principle (note on p. 157, this chapter). 

28. Some years ago, Hayek argued ( The Constitution of Liberty, chap. 3) that 
a free capitalist society, over time, raises the position of those worst off more 
than any alternative institutional structure; to use present terminology, he 
argued that it best satisfies the end-state principle of justice formulated by the 
difference principle. 

29. This is especially serious in view of the weakness of Rawls’ reasons (sect. 
82) for placing the liberty principle prior to the difference principle in a lex- 
icographic ordering. 

30. “The idea of the original position is to set up a fair procedure so that 
any principle agreed to will be just. The aim is to use the notion of pure proce- 
dural justice as a basis for theory.” Rawls, Theory of Justice, p. 136. 

31. Thomas Scanlon, Jr., “Rawls’ Theory of Justice,” University of Pennsyl- 
vania Law Review, 121, No. 5, May 1973, p. 1064. 

32. See my “Moral Complications and Moral Structures,” Natural Law 
Forum, 13, 1968, especially pp. 11— 21. 

33. Rawls, Theory of Justice, p. 72. Rawls goes on to discuss what he calls a 
liberal interpretation of his two principles of justice, which is designed to elimi- 



Notes 


347 


nate the influence of social contingencies, but which “intuitively, still appears 
defective . . . [for] it still permits the distribution of wealth and income to be 
determined by the natural distribution of abilities and talents . . . distributive 
shares are decided by the outcome of the natural lottery; and this outcome is ar- 
bitrary from a moral perspective. There is no more reason to permit the dis- 
tribution of income and wealth to be settled by the distribution of natural assets 
than by historical and social fortune” (pp. 73—74). 

34. Rawls, Theory of Justice, p. 104. 

35. Rawls, Theory of Justice, pp. 31 1— 312. 

36. Rawls, Theory of Justice, p. 15. 

37. Rawls, Theory of Justice, pp. 538—541. 

38. “In order to show that the principles of justice are based in part on envy 
it would have to be established that one or more of the conditions of the origi- 
nal position arose from this propensity.” Theory of Justice, p. 538. 

39. For example: 

1 . Differences between any two persons’ holdings should be morally deserved; 
morally undeserved differences should not exist. 

2. Differences between persons in natural assets are morally undeserved. 

3. Differences between persons partially determined by other differences that 
are undeserved are themselves undeserved. 

Therefore, 

4. Differences between persons’ holdings shouldn’t be partially determined by 
differences in their natural assets. 

40. Rawls, Theory of Justice, p. 310. In the remainder of this section, Rawls 
goes on to criticize the conception of distribution according to moral desert. 

41. “No reason need be given for . . . an equal distribution of benefits — 
for that is ‘natural’ — self-evidently right and just, and needs no justification, 
since it is in some sense conceived as being self-justified. . . . The assumption 
is that equality needs no reasons, only inequality does so; that uniformity, regu- 
larity, similarity, symmetry, . . . need not be specially accounted for, whereas 
differences, unsystematic behavior, changes in conduct, need explanation and, 
as a rule, justification. If I have a cake and there are ten persons among whom I 
wish to divide it, then if I give exactly one-tenth to each, this will not, at any 
rate automatically, call for justification; whereas if I depart from this principle 
of equal division I am expected to produce a special reason. It is some sense of 
this, however latent, that makes equality an idea which has never seemed in- 
trinsically eccentric. . . .” Isaiah Berlin, "Equality,” reprinted in Frederick A. 
Olafson, ed .Justice and Social Policy (Englewood Cliffs, N.J.: Prentice-Hall, 
1961), p. 131. To pursue the analogy with mechanics further, note that it is a 
substantive theoretical position which specifies a particular state ot situation as 
one which requires no explanation whereas deviations from it are to be ex- 
plained in terms of external forces. See Ernest Nagel’s discussion of D’Alem- 
bert’s attempt to provide an a priori argument for Newton’s first law of motion. 
[The Structure of Science, (New York: Harcourt, Brace, and World, 1961), pp. 
I 75 -I 77-1 

42. But see also our discussion below of Rawls’ view of natural abilities as a 
collective asset. 



348 


Notes 


43. Rawls, Theory of Justice, p. 179. 

44. Rawls, Theory of Justice, p. 102. 

45. Rawls, Theory of Justice, p. 27. 

46. Rawls, Theory of Justice, p. 183. 

47. Rawls, Theory of Justice, p. 102. 

48. "But isn’t justice to be tempered with compassion?” Not by the guns of 
the state. When private persons choose to transfer resources to help others, 
this fits within the entitlement conception of justice. 

CHAPTER 8 / Equality, Envy, Exploitation, Etc. 

1 . For a useful consideration of various arguments for equality which are 
not at the most fundamental level, see Walter J. Blum and Harry Kalven, Jr., 
The Uneasy Case for Progressive Taxation, 2nd ed. (Chicago: University of Chicago 
Press, 1963). 

2. Bernard Williams, "The Idea of Equality,” in Philosophy, Politics, and So- 
ciety, 2nd ser., ed. Peter Laslett and W. G. Runciman (Oxford: Blackwell, 
1962), pp. no— 1 31; reprinted in Joel Feinberg, ed., Moral Concepts (New 
York: Oxford University Press, 1969). 

3. Williams, “The Idea of Equality,” pp. 121— 122. 

4. Perhaps we should understand Rawls’ focus on social cooperation as based 
upon this triadic notion of one person, by dealing with a second, blocking a 
third person from dealing with the second. 

5. See Kurt Vonnegut’s story “Harrison Bergeron” in his collection Wel- 
come to the Monkey House (New York: Dell, 1970). 

6. See on this point, Judith Jarvis Thomson, “A Defense of Abortion,” Phi- 
losophy & Public Affairs, 1, no. 1 (Fall 1971), 55—56. 

7. “Men are, in great measure, what they feel themselves to be, and they 
think of themselves as they are thought of by their fellows. The advance in indi- 
vidual self-respect and in social amenity caused by the softening of the more 
barbarous inequalities of the past is a contribution to civilization as genuine as 
the improvement in material conditions.” R. H. Tawney, Equality (New York: 
Barnes & Noble, 1964), p. 171. The slightly different connection I shall trace 
between equality and self-esteem does not go in the first instance through other 
persons’ views. 

8. Compare L. P. Hartley’s novel, Facial Justice; and Blum and Kalven, The 
Uneasy Case for Progressive Taxation, p. 74: “Every experience seems to confirm 
the dismal hypothesis that envy will find other, and possibly less attractive, 
places in which to take root.” See also Helmut Schoeck, Envy, trans. M. Glenny 
and B. Ross (New York: Harcourt, Brace, Jovanovich, 1972). 

9. Might some thrive on no work at all, others on repetitive work that does 
not demand constant attention and leaves many opportunities for daydreaming? 

10. The Theory of Capitalist Development (New York: Monthly Review Press, 
1956). See also R. L. Meek, Studies in the Labour Theory of Value (London: 
Lawrence & Wishart, 1958), pp. 168-173. 

11. See Eugene Von Bohm-Bawerk, Capital and Interest, vol. 1 (South Hol- 
land, 111 .: Libertarian Press, 1959), chap. 12; and his Karl Marx and the Close of 
His System (Clifton, N.J.: Augustus M. Kelley, 1949). 



Notes 


349 


12. Capital, Part I, Chapter I, Section I, page 48. 

13. Marx, Capital, Vol. I, Chapter 2, pp. 97—98. 

14. Marx, Capital, p. 120. Why “stomach”? 

15. Compare Ernest Mandel, Marxist Economic Theory, vol. 1 (New York: 
Monthly Review Press, 1969), p. 161. “It is precisely through competition that 
it is discovered whether the amount of labor embodied in a commodity consti- 
tutes a socially necessary amount or not. . . . When the supply of a certain com- 
modity exceeds the demand for it, that means that more human labor has been 
spent altogether on producing this commodity than was socially necessary at the 
given period. . . . When, however, supply is less than demand, that means 
that less human labor has been expended on producing the commodity in ques- 
tion than was socially necessary.” 

16. Compare the discussion of this issue in Meek, Studies in the Labour Theory 
of Value, pp. 178-179. 

17. See the detailed discussion of his theory in Marc Blaug, Economic Theory 
in Retrospect (Homewood, 111 .: Irwin, 1962), pp. 207—271. 

18. See Israel Kirzner, Competition and Entrepreneurship (Chicago: Univer- 
sity of Chicago Press, 1973). 

19. Or he sends n different money orders to n different recipients; or n rich 
people each send an amount to one specific recipient. Since it makes no dif- 
ference to our argument, we shall make the simplifying assumption of an equal 
number of rich and poor individuals. 

20. With n individuals in poverty, the utility for this person of no one’s 
being in poverty is greater than 

n 

X u (individual i is not in poverty given that the rest remain in poverty). 
i = 1 

This statement uses a notion of conditional utility, on which see my un- 
published doctoral dissertation, “The Normative Theory of Individual Choice” 
(Princeton University, 1963, chap. 4, sect. 4); and R. Duncan Luce and David 
Krantz, “Conditional Expected Utility," Econometrica, March 1971, pp. 
253-271. 

21. As one might have thought the earlier cases to be. See H. M. Hockipan 
and James D. Rodgers, “Pareto Optimal Redistribution,” American Economic 
Review, September 1969, pp. 542—556. See also Robert Goldfarb, “Pareto Op- 
timal Redistribution: Comment,” American Economic Review, December 1970, 
pp. 994—996, whose argument that compulsory redistribution is in some cir- 
cumstances more efficient is complicated by our imagined scheme of direct in- 
terpersonal transfers. 

22. Why not those that unimportantly affect their lives as well, with some 
scheme of weighted voting used (with the number of votes not necessarily being 
proportional to the degree of effect)? See my note "Weighted- Voting and ‘One 
Man One- Vote’ ” in Representation, ed. J. R. Pennock and John Chapman (New 
York: Atherton Press, 1969). 

23. Dr. Seuss, Thidwick, the Big-Hearted Moose (New York: Random House, 
1948). 



350 


Notes 


CHAPTER 9 / Demoktesis 

1 . “With the purpose of the State thus confined to the provision of external 
and internal security, or to the realization of a scheme of legal order, the sover- 
eign commonwealth was reduced, in the last analysis, to the level of an insur- 
ance society for securing the liberty and the property of individuals.” Otto 
Gierke, Natural Law and the Theory of Society 1500—1800, vol. i (New York: 
Cambridge University Press, 1934), p. 113. All the more would Gierke make 
this complaint (which others might view as praise) about the dominant protec- 
tive association of a territory. 

2. For an alternative illegitimate route to a state more extensive than the 
minimal state, see Franz Oppenheimer, The State (New York: Vanguard, 1926). 
Though it would be appropriate within this essay to dissect critically Locke’s 
route to a more powerful state, it would be tedious, and similar things have 
been done by others. 

3. On these last points see my “Newcomb’s Problem and Two Principles of 
Choice,” in Essays in Honor of C. G. Hempel, ed. Nicholas Rescher et al. (Hol- 
land: Reidel, 1969), especially pp. 135— 140. 

4. See C. G. Hempel, Aspects of Scientific Explanation (New York: Free Press, 
1965), pp. 266-270. I use “fundamental” here in Hempel’s sense, rather than 
as in Chapter 1 above. The requirement excluding indexical expressions (“I,” 
“my”) from moral principles lacks adequate justification. 

5. See Harold Demsetz, “Toward A Theory of Property Rights,” American 
Economic Review, 1967, pp. 347—359. 

6. “Each gives himself to everybody, so that ... he gives himself to no- 
body; and since every associate acquires over every associate the same power he 
grants to every associate over himself, each gains an equivalent for all that he 
loses. . . .” Jean Jacques Rousseau, The Social Contract, bk. 1, chap. 6. 

7. See Locke, First Treatise on Government, chap. 6, for Locke’s criticism of 
the view that parents own their children, and chap. 9, for his objections to con- 
sidering ownership in such cases (supposing it to exist) as transitive. 

8. In his introduction to his standard edition of Locke (Two Treatises of Gov- 
ernment, 2nd ed. New York: Cambridge University Press, 1967) Peter Laslett 
offers no internal explanation of why Locke goes on to write the First Treatise, 
and he treats this somewhat as an oddity (pp. 48, 59, 61, 71). That Locke’s 
own developing views on property led him to think it necessary to consider, and 
distinguish himself from, Filmer in such detail, may seem to be contradicted by 
Laslett’s assertion on page 68 about Locke’s view of property, but one sees that 
this assertion does not have this consequence if one closely examines Laslett’s 
statements on page 34 and page 59. 

9. Compare Locke’s presentation of a similar argument in sections 116 and 
1 17, and see section 120 where Locke shifts illegitimately from someone’s 
wanting society to secure and protect his property to his allowing it complete 
jurisdiction over his property. 

10. See Herbert Spencer, Social Statics (London: Chapman, 1851), chap. 
19, “The Right to Ignore the State,” a chapter that Spencer omitted from the 
revised edition. 



Notes 


35i 


1 1 . See Herbert Spencer, The Man Versus the State (Caldwell, Idaho: Caxton 
Printers, i960), pp. 41—43. 


CHAPTER 10 / A Framework for Utopia 

1 . “A state which was really morally neutral, which was indifferent to all 
values, other than that of maintaining law and order, would not command 
enough allegiance to survive at all. A soldier may sacrifice his life for Queen and 
Country, but hardly for the Minimum State. A policeman, believing in Natural 
Law and immutable right and wrong, may tackle an armed desperado but not if 
he regards himself as an employee of a Mutual Protection and Assurance Soci- 
ety, constructed from the cautious contracts of prudent individuals. Some ideals 
are necessary to inspire those without whose free co-operation that State would 
not survive.” J. R. Lucas, The Principles of Politics (Oxford at the Clarendon 
Press, 1966), p. 292. Why does Lucas assume that the employees of the mini- 
mal state cannot be devoted to the rights it protects? 

2. The assumption that supply is always limited “is trivially valid in a pure 
exchange economy, since each individual has a finite stock of goods to trade. In 
an economy where production takes place, the matter is less clear. At an arbi- 
trarily given set of prices, a producer may find it profitable to offer an infinite 
supply; the realization of his plans will, of course, require him to demand at the 
same time an infinite amount of some factor of production. Such situations are 
of course incompatible with equilibrium, but since the existence of equilibrium 
is itself in question here, the analysis is necessarily delicate.” Kenneth Arrow, 
“Economic Equilibrium,” International Encyclopedia of the Social Sciences, vol. 4, 
p. 381. 

3. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard Univer- 
sity Press, 1971), chap. 9, sect. 79, “The Idea of aSocial Union,” and Ayn Rand, 
Atlas Shrugged (New York: Random House, 1957), pt. Ill, chaps. 1, 2. 

4. See Richard Lipsey and Kelvin Lancaster, “The General Theory of Second 
Best,” Review of Economic Studies, 24 (December 1956), which has stimulated an 
extensive literature. 

5. Compare John Rawls, Theory of Justice, sect. 63, n. 1 1. It is not clear how 
extensively Rawls’ later text would have to be revised to take this point expli- 
citly into account. 

6. Some theories underlying such imposition are discussed by J. L. Talmon 
in The Origins of Totalitarian Democracy (New York: Norton, 1970) and Political 
Messianism (New York: Praeger, 1961). 

7. An illuminating discussion ot the operation and virtues of a similar filter 
system is found in F. A. Hayek, The Constitution of Liberty (Chicago: University 
of Chicago Press, i960), chaps. 2, 3. Some utopian endeavors have fit this, to 
some extent. “[The nondoctrinaire character of the origins of the Jewish com- 
munal settlements in Palestine] also determined their development in all essen- 
tials. New forms and new intermediate forms were constantly branching off — in 
complete freedom. Each one grew out of the particular social and spiritual needs 
as these came to light — in complete freedom, and each one acquired, even in 
the initial stages, its own ideology — in complete freedom, each struggling to 



352 


Notes 


propagate itself and spread and establish its proper sphere — all in complete 
freedom. The champions of the various forms each had his say, the pros and 
cons of each individual form were frankly and fiercely debated. . . . The 
various forms and intermediate forms that arose in this way at different times 
and in different situations represented different kinds of social structure . . . 
different forms corresponded to different human types and . . . just as new 
forms branched off from the original Kvuza, so new types branched off from the 
original Chaluz type, each with its special mode of being and each demanding 
its particular sort of realization. ...” Martin Buber, Paths in Utopia (New 
York: Macmillan, 1950), pp. 145—146. 

The people involved need not be trying to discover the best possible commu- 
nity; they may merely be attempting to improve their own situation. Some per- 
sons, however, may consciously set out to use and streamline the filtering pro- 
cess of people’s choices to arrive at what they (tentatively) judge to be the best 
community. Compare Karl Popper’s account of the filtering process of scientific 
method, self-consciously used and participated in to get closer to the truth [Ob- 
jective Knowledge (New York: Oxford University Press, 1972)}. Since some persons 
who participate in filtering processes (or equilibrium processes) will have as an 
objective reaching the final end, while others won’t, we might refine the notion 
of an invisible-hand process to admit of degrees. 

8. See Benjamin Zablocki, The Joyful Community (Baltimore: Penguin Books, 
1971). 

9. For a recent account see Haim Barkai, “The Kibbutz: an Experiment in 
Micro-socialism,” in Israel, the Arabs, and the Middle East, ed. Irving Howe 
and Carl Gershman (New York: Bantam Books, 1972). 

10. That is, we think that if we are presented with individual members of 
the set of exceptions to a particular principle, we will often (though not neces- 
sarily always) be able to tell it is an exception, even though it does not fit any 
explicit description of the exceptions we had been able to offer heretofore. Being 
confronted with the particular case and realizing it is an exception to the princi- 
ple often will lead us to offer a new explicit marking off of exceptions to the 
principle; one that once again (we realize) does not mark off all the exceptions. 
One possible structure of the moral views of a person who makes particular 
moral judgments, yet is unable to state moral principles that he is confident 
have no exceptions, is discussed in my “Moral Complications and Moral Struc- 
tures,” Natural Law Forum, 13, 1968, pp. 1—50. 

11. We are here speaking of questions of emigration out of a community. 
We should note that someone may be refused entry into a community he wishes 
to join, on individual grounds or because he falls under a general restriction 
designed to preserve the particular character of a community. 

12. See Herbert Marcuse, “Repressive Tolerance,” in A Critique of Pure Tol- 
erance, ed. Robert P. Wolff et al. (Boston: Beacon, 1969). 

13. “There is no really satisfactory theoretical solution of the problem. If a 
federal government possesses a constitutional authority to intervene by force in 
the government of a state for the purpose of insuring the state’s performance of 
its duties as a member of the federation, there is no adequate constitutional bar- 
rier against the conversion of the federation into a centralized state by vigorous 
and resolute central government. If it does not possess such authority, there is 
no adequate assurance that the federal government can maintain the character of 



Notes 


353 


the system when vigorous and resolute state governments take full advantage of 
their constitutional freedom to go their own ways.” Arthur W. MacMahon, 
ed., Federalism: Mature and Emergent (New York: Doubleday, 1955), p. 
139. See also of course the Federalist Papers. Martin Diamond interestingly dis- 
cusses “The Federalist’s View of Federalism,” in Essays in Federalism (Institute 
for Studies in Federalism, 1961). 




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Weber, Max. The Theory of Social and Economic Organization. Glencoe, 111 .: Free 
Press, 1947. 

Weber, Max. Max Weber on Law in Economy and Society. Edited by M. Rhein- 
stein. Cambridge: Harvard University Press, 1954. 

Williams, Bernard. "The Idea of Equality.” In Peter Laslett and W. G. Run- 
ciman, eds. Philosophy, Politics and Society. 2nd series. Oxford: Basil Black- 
well, 1962. 

Wohlstetter, Roberta. Pearl Harbor: Warning and Decision. Stanford, Cal.: Stan- 
ford University Press, 1962. 

Wolff, Robert Paul. “A Refutation of Rawls’ Theorem on Justice. "Journal of 
Philosophy 63, no. 7 (March 31, 1966). 

Zablocki, Benjamin. The Joyful Community. Baltimore: Penguin Books, 1971. 



INDEX 


acquisition, principle of, 150-153, 157-158, 
173, 208 

Locke on, 174-178 
See also Lockean proviso 
Acton, J.E.E.D., 125 
aggregative principle, 209-210 
aggression, 32-34 

Alchian, A., 21, 26m, 339 n9, 345 ml, 

346 m 8 

Allen, W. A., 33909 

anarchist, and protective association, 1 20-1 29, 
130-131 

Anarchist theory, 4-6 

why condemns state, 51-53 
anarchy, see State of nature 
animals: 

moral treatment of, 35-47 
Kantian position on, 39-40 
utilitarian position on, 39-41 
eating of, 36-38 

Appropriation. See acquisition, principle of; 
Lockean proviso 

arbitrariness, moral relevance of, 213-227 
Arrow, K., 26m, 2980, 30m, 35in2 
Ashcroft, Richard, 336010 
association, 299 

stability of, 299-306 
Aumann, R., 3000 

Barkai, H., 35209 
Bedau, H., 344014 
Bentham, J., 40, 338010 
Berlin, I., 347041 
Bittker, B , 34402 
blackmail, 85-86 
Blanc, L., 250 
Blaug, M., 346020, 349017 
Blum, W., 339012, 348m, n8 
Bohn-Bawerk, E. von, 348ml 
border-crossing. See boundary, moral 
Boulding, J., 33607 
boundary, moral, 57-59 
crossing, 75-76, 83, 86-87 
crossing not prohibited, 163-171 
crossing prohibited, 71-73 
boycott, 17, 1940, 292-293, 322-323 


Brozen, Y., 33609 
Buber, M., 35207 

Calabresi, G. , 33806 
Chamberlain, Wilt, 161-163, 1640 
children: 

parents’ rights over, 38-39, 287-291 
and the framework for utopia, 330 
Chomsky, N., 345n6 
Coase, R., 76n, 346018 
Cohen, M., 23 

compensation, 57-59, 63-65, 71-73 
full, 57, 68, 1430, 1440 
market, 65, 68 

makes boundary crossing permissible, 

63-71 

and risk, 75-78 
right to exact, 135-137 
See also compensation, principle of 
compensation, principle of, 78-79, 81-84, 
; 86-87, 1 14-1 15 

introduces patterning, 345014 
and preventive restraint, 142-147 
and protecting others, 110-115 
and providing liability insurance, 115 
constraints, moral side, 28-35, 46047, 294 
absolute nature of, 300 
and animals, 35-42, 45-47 
based upon, 48-51 
contract-like view of, 137-138 
different from goals, 28-30, 460 
formal argument leading to, 33-34 
and property rights, 171 
rationale, 30-33 
and rights, 28-29 
and redistribution, 172-173 
state violates, 51-52 
copyright, 141 
Crow, J., 20, 3150 

current time-slice principles, 1 33-1 55 , 208 

Dales, J. H., 8in 
Debreu, G. , 300-3010 
demoktesis, 290 

hypothetical genesis of, 280-290 
Demsetz, H., 26m, 346018, 35005 

361 



362 


Index 


Dershowitz, A., 14611, 3441116 

desert, 154, 159, 215-217, 224-226, 237-238 

design devices, 312-317 

deterrence, 56-93 

and utilitarianism, 61-62 
Deucsch, K., 20 
Diamond, M., 353013 
difference principle: 

application to macrostructure, 204-207 
egalitarian, 2 10-2 12 
not neutral, 192 -197 
in microcases, 1670 

reasonable terms for social cooperation, 
189-197 

as rule of thumb for rectification, 231 
differences, and the framework for utopia, 

3 0 9-3i7 

disadvantages, 81-83, 86-87, 114-115 
and preventive restraint, 143-146 
distributive justice, 149-23 1 
and arbitrariness, 213-227 
entitlement theory of, 149-182 
problem created by social cooperation, 
183-189 

Rawls’ theory of, 183-231 
micro and macro situations, 204-207 
special theory of, 219 
term not neutral, 149-150 
See also entitlement theory; justice in holdings; 
patterned principles 

dominant protective association (agency): 
as de facto monopoly, 1 08-1 10 
and destruction of other agencies, 121-129 
formation, 15-18 
as virtual monopoly, 17 
as state, 22-25, 51-53, no, 113-118, 
1 18-1 19 

and independents, 54-56 
and power, 1 34-140 
and procedural rights, 96-108 
prohibiting private enforcement of justice, 
96-108, IOI-IIO 
protecting others, 110-115 
special rights, 101-102, 108-110, 133-134 
See also protective association 
double jeopardy, 136-137 

egalitarian principles: 

and the difference principle, 210-213, 
222-226 

and envy, 240-246 
overturned by liberty, 164 
and workers’ control, 251 
emigration: 

from a community under the framework, 330 
from country with patterned principles, 
i73-!74 

in possible worlds model, 299-309 
end-result principles, 153-155 
and original position, 198-204 


and sources of income, 170-171 
end-state principles. See end-result principles 
ends, people as, 31-32, 228 
enforcement of rights and justice, 12, 14-15, 24 
See also private enforcement of justice 
entitlement theory, 149-182, 186, 194, 

198-204, 219-220, 225-226, 230-231, 
236-238, 247 

versus end-result principles, 153-155 
entitlements, non-superficial, 206-207 
and equality, 232-233 
and marginal productivity, 188 
and natural assets, 255-226 
non-organic and aggregative, 209-210 
not distributed according to desert, 217 
not patterned, 207-208 
versus patterned principles, 155-160 
and rights, 238, 268-271 
three principles of, 150-15 3 
envy, i62n, 239-246 

compared to other notions, 239-2400 
and Rawls’ theory, 215-229 
and self-esteem, 239-246 
equality, 232-235 

and the difference principle, 210-213, 
222-226 

and envy, 239-246 
and equal political power, 271-273 
of opportunity, 235-239 
and self-esteem, 243-245 
See also egalitarian principles 
equilibrium process, 21-22 
evolution: 

and filter devices, 314-317 
and invisible-hand explanation, 314-315, 317 
exchange: 

dividing benefits of voluntary, 63-65, 84, 86 
economists’ explanation of, 64-650 
and labor theory of value, 260-261 
productive, 84-86, 145 
and social cooperation, 186-187 
and treating people as ends, 31 
voluntary, 150-153, 157-158, i88n, 262-265 
experience machine, 42-45 
experimentation, utopian, 307, 312, 312 -3 17, 
329, 332-333 
Explanation: 

under determined by data, 278 
potential, 7-9 

unified, and patterned principles, 220-221 
See also fundamental explanation; invisible- 
hand explanation; hidden-hand explanation 
exploitation, Marxian view of, 253-262 
extensive state: 

derivation, 280-290, 292-294 
and distributive justice, 231 
and injustices, 231 
unjustifiable, 140, 297 
use by powerful, 272 
violates rights, 140 
See also demoktesis 



Index 


363 


externalities: 

internalizing, 280-281 
of knowledge, 245, 322-323 

fairness, 80, 2030, 236 
principle of, 90-95 

family, and patterned principles, 167-168 
fear: 

existence of, 69-71 
and non-global emotion, 70 
and prohibition, 65-71, 72-73, 105, 339n 13 
Feinberg,J., 343nio 
Fiacco, A., 29n 
Filmer, R., 287, 35on8 
filter devices, 21-22, 312-318 
financing state: 
lottery, 250 

retributive penalties, 62n 
Fletcher, G. P-, 630 
forced labor, 169-172, 2290 
Fourier, C., 1780, 308, 316 
framework for utopia, 307-325, 329-334 
as common ground, 317-320 
differences and, 309-317 
and complexity, 312-317 
and differing tradeoffs, 312 
and libertarian theory, 320-323 
and minimal state, 333*334 
free rider, 94, 267-268 

See also fairness, principle of 
Frey, F., 20 
Fried, C., 76-77 
Friedman, D., 1770, 33604 
Friedman, M., 27n, 346017 
"from each . . . 159-160 

Fundamental explanation, 6 
illumination of, 8 
and invisible-hand, 19 
of political realm, 7-9 

Gardner, M., 34202 

genetic engineering, 3150 

George, H., 175 

Gierke, O., 350m 

Ginsburg, L. , 3140 

goals, moral, 28-30, 460, 172-173 

Godwin, W. , 5 

Goffman, E., 33804 

Go Id far b, R., 349021 

Gray, A., I79n, 31 3n 

Hahn, F., 30m 
Hamowy, R., i8on, 340016 
Hanson, N. R. 335m 
Harcourt, G. C., 346020 
Harman, G., 337n6, 341010 
Hart, H. L. A., 74, 90-93, 337015, 339012, 
340m ,n2,n3 
Hartley, L. P., 34808 

Hayek, F. A., 21, 158-159, 173, i8on, 218, 
334113, 114, 336-337013. 346028, 351117 


Hempel, C. G., 7, 335m, 35004 
Hermstein, R., 20 
hidden-hand explanation, 19-20 
historical principles, 152-160, 199-204 
love as historical relationship, 167-168 
Hockman, H. M., 340021 
Hohfeld, W., 175 

holdings, see justice in holdings; acquisition of 
holdings; transfer of holdings 
Hospers, J., 336n4, 33707 
Hurwicz, L. , 2980 

independent, 24, 96, 117 

enforcing justice, 54-56, 109-110 
private enforcement of justice, 88-90 
indexical expressions, and moral principles, 29, 
278, 35004 

inequality, Rawls on, 188-189, 195, 1970 
innocent shield, 35 
innocent threat, 34-35, 228ml 
invisible-hand explanations, 18-22, 336-337ni3 
examples of, 20-21 
of marketplace, 18 
of money, 18 

satisfying quality of, 18-19 
of the state, 22-25, 5 2 » 118-119 
See also invisible-hand process 
invisible-hand process: 
de facto monopoly ,115 
and coordination games, 140 
and macro states, 74 
as social compact, 131-132 
See also invisible-hand explanation 

Jacobs, J., 20 

justice in holdings, 150-153, 157-160 
See also entitlement theory 

Kalven, H., 330012, 348m, n8 

Kant, I., 32, 228, 33704, 338m 

Katz, J. J. , 34207 

Kessell, R., 337016 

Kim, J., 8n 

Kimura, M., 20, 3150 

Kirzner, I., 255, 346019, 349018 

Krader, L., 341013 

Krantz, D., 349020 

Kristol, I., 34404 

Krystofiak, T., 338010 

labor theory of value, 253-262 
Lancaster, K., 34104 
Laslett, P., 35008 
Leary, T., 2440 

legitimacy of state, 17, 133-137* I 39 ‘ I 4 ° 

Levene, H., 3150 

Lewis, D., 343014 

Lewontin, R. C., 315 

liability: 

acting without insurance for, 78-79 
of corporations, 133 



364 


Index 


Liability ( continued) 

publicly provided insurance for, 115 
of state's agents, 1 33 
libertarian constraints: 

analog to nonagression among nations, 34 
formal argument leading to, 33-34 
libertarian theory: 

disagreements within, 141, 331 
and framework for utopia, 320-323 
and maintenance of macroratio, 3150 
and surrounding an individual, 550 
writers on, 335-336114 
liberty, upsets egalitarian principles, 164 
See also rights 
Lipsey, R., 35 1114 

Locke, J., 9-12, 17-18, 54, 58, 131-133, 
137 - 138 , 153 . i 74 -i 78 , 225, 287-291, 
335m , 336010, 33805, 34006, 341m, 
34208, 34308,09, 35007-09 
Lockean proviso, 55n, 175-182, 2700, 289-290, 

323 

Lucas, J. R., 351m 
Luce, R. D., 239020, 34203 

Machlup, F. , 33609 

MacKay, J. H., 345n6 

MacMahon, A., 353013 

Madow, W. , 20 

Mandel, E., 349015 

manna-from-heaven model, 198, 219 

Marcuse, H., 352012 

marginal product, 157, 187-1880, 188, i94n 
and possible worldsmodel, 301-302, 304-305 
market: 

coordinates actions, 163-164 
provides meaningful work, 248-250 
workers’ controlled factories in, 250-253 
Martin, J. J., 33504 

Marx, K., i88n, 253-262, 2730, 349012-014 
McCormick, G., 290 
meaning of life, and moral theory, 50-51 
meaningful work, 246-250 
means, using people as, 31-32, 46-47, 71 
and Rawls’ theory, 228-229 
and utilitarianism, 39-41, 45 
Meek, R. L., 348010, 349016 
Melamed, D., 33806 
methodological individualism, 22 
Michelman, F., 8in 
middlemen, 18, 64 
minimal state, 26-28 
inspiring, 297, 333 
nonneutral, 272-273 
reduces manipulation of state, 272 
to justify, 52-53, 140 

and ultra minimal state, 26-27, 1 13-1 15, 1 1 9 
and utopia, 333-334 

See also night-watchman state; ultraminimal 
state; dominant protective association 
Minogue, K., 1690 
Mises, L., 20, 336012, 344014 


Mishan, E. J., 339015 
money, invisible hand explanation of, 18 
Monopoly and protective services, 17 
monopoly on force: 

condemned by anarchist, 51-52 
as condition for state, 23-24 
de facto, 108-1 10 

had by dominant protective association, 113, 
115-118 
Moral theory: 

and arbitrariness, 213-227 

and consistency arguments, 277-279 

and indexical expressions, 29, 278, 35004 

and meaning of life, 50-51 

role of examples in, 37-38, 277-279 

and structure of moral view, 29n, 46n 

task for, 9 

See also constraints, moral-side 

Nagel, E., 347041 
natural rights: 

Hart's argument for, 91-93 
and risk, 74-78 

the tradition on procedural rights, 101 
Nelson, L. , 338m 1 
Newman, P., 339n8 
night-watchman state, 25, 26-27 
See also minimal state 
nonneutral state, 33, 271-273 
normative sociology, 247-248 
Nozick, R., 86n, 990, 2670, 337m, 34202, 
345010, m3, 346032, 349020,022, 

35003, 352010 

Oppenheimer, F., 35002 
opting out, 173-174, 290, 321-323 
organic principle, 209-210 
original position: 

and arbitrariness of natural assets, 226-227 
embodies process argument but can’t lead to 
fundamental process principle, 207-209, 
196-1970, 211, 214 
focus on person, 190 
iterated, 212-213 

limited to selecting end-result principles as 
fundamental, 198-204 
Orwell, G. , 39 
Owen, R., 316 

pacifism, 990 
patents, 141, 182 
Paternalism, 14 

and communities, 324 

connected with reasons, 27, 34, 58-59, 
67-680, 109 

and framework for utopia, 320-321 
patterned principles, 155-160, 218-224 
and the difference principle, 208-210 
and emigration, 173-174 
and the family, 167-168 
requiring redistribution, 168, 170-174 



Index 


365 


and focus on recipients, 168 
sufficient conditions for being, 209-210 
and entitlements, 167 
and unified explanations, 220-221 
upset by liberty, 160-164, 219-220 
and voluntary transfers, 232-233, 249, 252, 
265-268 

and principle of compensation, 345ni4 
Peter Principle, 21 
philanthropy, 79, 265-268 
Plato, 205 

Political Philosophy, 3 
and aggression, 32 
fundamental question of, 4 
relation to moral philosophy, 6 
Political theory, 6-9 
pollution, 79-81 
Popper, K., 35207 
Portia, 55n 

possible worlds model. See utopia, possible worlds 
model 

preemptive attack, 126-129 
preventive restraint, 142-146 
Principle VII: 

and egalitarianism, 21 1 
and pacifism, 98-990 
and rule of necessity, 63 
prisoner’s dilemma, 124 
private enforcement of justice, 24, 135-140 
anarchist condemns, 51-52 
prohibition of, 88-90, no, 142-143 
and risk, 105-108 
procedural rights, 56, 96-108 
productive activity. See exchange, productive 
prohibition: 

and boundary crossing, 59, 71-73 
and fear, 65-71 

on joining protective association, 120-129 
of last component needed for wrong, 1 27-1 29, 

M3 

moral, 57-59. 59 . 63-71 
and neutrality, 272-273 
and non-global nature of fear, 70 
of private enforcement of justice, 88-90, 
1 10-113 

of risky acts, 73-87 

of unreliable private enforcement of rights, 
96-1 10 
property: 

considerations favoring, 177 
and pollution, 79-81 
property rights, 171-172 
and externalities, 280-281 
in persons, 172, 228-229, 281-290 
and redistribution, 167-173 
and rights of others, 269-270 
protection: 

anarchist condemns monopoly in, 51-52 
and dominant protective association, 24-25, 
1 10-115 

state providing, 23-25, 27-28 


protective associations, 12-15 
as business, 13 
outlaw agency, 17 
and private “retaliation," 15 
and retributive payments, 62n 
rights of, 89-90 

See also dominant protective association 
Proudhon, P. J., 11, 316 
proviso. See Lockean proviso 
psychoactive drugs, 44, 221 
See also paternalism 
public goods, 21 

See also fairness, principle of 
public wrongs, 67 
Punishment: 

Locke on, 11-12, 59-63, 96-98 
right to, 106-107, 135, 137-140 
See also retribution; deterrence; procedural 
rights 

Raiffa, H., 34203 

Rand, A., I79n, 344015, 35103 

Rashdall, H., 1790 

Rawls, J., 90, 93, 1670, 183-231, 239-2400, 
337n2,n5, 34001,04, 344m, 345012, 
346016, 021-23, 025, n26, 029-030, 

033-038, 040, 042, 348 043-047, 04, 
35103, n5 

Rawls’ theory of justice, 183-231 
See also difference principle; original position; 
end-result principles; inequality 
rectification, principle of 

not redistributive, 27, 152-153, 173, 208, 
230-231 

redistribution, 140, 274-275 

in community and nation, 321-323 
connected with reasons, 27 
and liability insurance, 1 1 5 
and minimal state 25, 113-115 
and patterned principles, 168 
and philanthropy, 265-268 
and property in persons, 172, 226, 228-229 
and property rights, 167-173 
protection of others, 144 
Rembrandt, 258 
rent control, 270-271 
responsibility: 

bucket theory of, 130 
degree of, 60-63 
for others, 129-130, 190-192 
in political realm, 100 
Rawls on, 2 14 
retribution, 59-63, 69 
and self-defense, 62-63 
rights: 

for compensation, 135-137 
enforcement of, 12, 30, 91-93 
and epistemic considerations, 106-107 
with hooks, 264-265 
and hypothetical histories, 292-294 
in Locke’s state of nature, 10 



3 66 


Index 


rights (i continued) 
to life, 17911 

and moral constraints, 28-29 
nature of, 89, 90, 139 
of parents, 38-39, 287-291 
protection against violation, 27-28 
personal, 268-271, 292-293 
to punish, 137-140 
and Sen's argument, 164-166 
risk, 73-78 

in capitalist and socialist society, 255-2 56, 
260-261 

and preemptive attack, 126 
and preventive restraint, 142-146 
and private enforcement of justice, 88-90, 
105-108 

See also compensation, principle of 
Roberts, A. , 336m 1 
Rodgers, J. D., 349021 

Rothbard, M , 8in, 86n, 33604, 33802, 

343 ni 2 , 344015 
Rousseau, J. J., 35on6 

sacrifice: 

of individual, 32-33 
for others, 39, 45-47 
and utilitarianism, 41 
Scanlon, T., 210, 212, 346031 
Scarf, H., 3000 

Schelling, T. C., 20, 198, 33502, 34204, 
344014 

Schoeck, H., 34808 
Schumpeter, J., 262 
self-defense: 

against innocent person, 35, 62-63, 102 
and preemptive attack, 126-129 
and protective agencies, 121-129 
in war, 100 
self-esteem, 239-246 
Seligman, M., 339010 
Sen, A. K., 164-166, 2290 
Seuss, Dr., 340023 
Sharp, G., 336m 1 
Singer, I. B., 33605 
Singer, P., 338ml 
slavery, 290-292, 331 
Slobodkin, L., 20 
Smith, A., 18, 21 
social compact, 131-132 
social cooperation: 

and constant-sum game, 228-229 
difference principle, 189-197 
and equality, 223 
and groups, 193*195 
and individual, 21 
and justice, 183-189 
social products, 95 

Socialism, 163, 231, 250-251, 253, 261, 32m, 

325 

Spencer, H., 350010, 351ml 
Spooner, L. , 335-33604 


State: 

and anarchist, 51-53 

and dominant protective association, 22-25, 
1 10, 1 13-1 18 
extent, 117 
inconveniences of, nn 
invisible hand explanation of, 118-119 
legitimacy of, 17, 133-137, 139-140 
origin, 5-6 

and prisoner’s dilemma, 124 
and private enforcement of justice, 142-143 
and special rights, 51-52, 276 
within state of nature, 133 
in world of certainty, 140-142 
See also minimal state; ultraminimal state; 
extensive state, nonneutral state 
State of Nature, 10-18, 133 

and derivation of extensive state, 280-290 
inconveniences of, 1 1 
and the prisoner's dilemma, 124 
procedural rights in, 56 
and prohibition of risky acts, 74-76, 89 
and protective agency, 1 31-133 
State-of-Nature Theory, 3-9 
Sweezy, P., 258 

Talmon, J. L., 35106 

Tandy, F., 33604 

Tannehill, M. and L., 336n4.ni! 

Tawney, R. H., 348n7 
taxation of earnings, 169-172, 265-268 
Thidwick, the big-hearted Moose, 269-270 
Thomson, J. 33707, 34806 
Tocqueville, A. de, 328 

transfer, principle of, 150-153, 157-158, 

207-208 

Tribe, L., 34005 
Tristan, F., 316 
Trotsky, L., 241, 245, 308 
Tucker, B., 335-336114 

ultraminimal state, 26-28, 119 
proponent of, 27-30 
from state of nature, 52 
transformed, 52, 113-115 
See also minimal state 
Utilitarianism: 

and animals, 39-41 
and deterrence theory, 61-62 
as end-state, 153-155, 199, 208 
and persons, 39-41, 42, 45 
not process principle, 208 
and rights, 28-29 
and usual precepts of justice, 202 
utopia, 297-334 

dual conception of, 332 
ends of utopian theorists, 328-331 
framework for, 307-325, 329-334 
means for getting, 326-328 
process substituted for ends, 332 
results, 331-333 



Index 


367 


three types, 319-320 
and utopian experimentation, 307, 
312-317, 329, 332-333 
worlds model, 297-309 
See also framework for utopia 

Vlastos, G., 34609 

Vonnegut, K., 34805 

Warren, J., 316 

Weber, M., 23, 117-118, 337014 


welfare economics, 154-155 
312, and rights, 164-166 

Williams, B., 233-235, 34802,03 
Wisdom, J. , 1690 
Wittgenstein, L., 95 
Wohlstetter, R., 21 
Wolff, R. P., 345012 
workers' control, 250-253 


Zablocki, B., 35208